"After all, what are we all fighting for?"25-Jul-2016
Australia's weird record on human rights
Yet, all the major common law countries have national human rights acts or bills of rights, but not good ol’ Australia, which defiantly holds back the tide of the global rights movement. UK citizens are prone to make put-down remarks about Australia’s backwards jurisprudence where the nation subsists in a human rights void.
Contrary to the over-blown forecasts of doom, the human rights regimes in the UK, Canada, New Zealand, the USA have not reduced those places to judicial tyrannies. It should be noted, however, that the new Tory prime minister, Theresa May, wants Britain out of the European Convention on Human Rights.
The Victorian attorney general, Martin Pakula, says he is keen to promote a “human rights culture” in Victoria, but as yet no decision has been made on allowing citizens to bring actions for breaches of charter rights.
The reform recommendations were made last September in a review of the Charter of Human Rights and Responsibilities conducted by the former CEO of the Victorian Law Institute, Michael Brett Young.
A proposal to extend the human rights “culture” to the private sector has not been accepted, while giving the Equal Opportunity and Human Rights Commission power to conduct dispute resolution for charter breaches is under “further consideration”.
A decision on whether citizens can seek stand-alone remedies for breaches of the charter of rights is also on the back burner. The soft options have been adopted while the more challenging ones are yet to be grappled with.
Emily Howie, director of advocacy and research at the Human Rights Law Centre in Melbourne, said it was disappointing that Victorians still could not bring actions to enforce the rights provided under the charter.
“To show it’s serious about protecting people’s human rights, particularly people with lived experience of disadvantage, the government must ensure access to real remedies. Unenforceable rights struggle to be more than aspirational ideas. For people whose rights are violated, it’s critical that they can do something about it,” said Howie.
A parliamentary committee in Queensland has just completed a report on whether that state should adopt a human rights act and again the outcome has been disappointing, with the committee splitting on party lines.
There were almost 500 submissions, overwhelmingly in support of some sort of human rights protections, yet the LNP members didn’t want a bar of it. The Labor members of the committee opted for a compatibility model, where new legislation is supposed to be compatible with human rights, yet without restricting the passage of incompatible laws. The Labor members went so far as to say that the judiciary should play no role in any complaint process.
The Human Rights Law Centre said that this fell “well short of what’s required for adequate human rights protections”.
The main contentions against a national human rights act for Australia rarely, if ever, make much sense. The prime objection is that we’d be handing over a lot of law-making power from parliamentarians to unelected judges. This either suggests that judges should be elected, which is a really bad idea, or that our rights are best protected by politicians. The ballot box is all we need – something that is delusionally out-of-step with reality.
We’re not talking here about human rights that are constitutionally embedded and immoveable. The models under discussion are confined to legislation, which can be amended or repealed by parliamentarians. The politicians ultimately are in charge of the law, not the judges.
Another well-worn objection to legislating for the protection of human rights is that the existing common law is such a magnificent creature that no more needs to be done. It’s a strange argument given that the rest of the common law world has developed enforceable rights regimes for the very reason that judge-made law is not up to the task.
Indeed, Australia’s judge-law has done nothing noticeable to bring balance to the stream of terror-related legislation, anti-protest laws, marriage inequality, permanent detention without charge, invasions of privacy, Indigenous disadvantage and inequality, and more.
Matters that are typically included in charters of rights include: equality before the law, fair hearings, protection from torture and cruel treatment, protection from retrospective criminal laws, freedom from forced work, freedom of movement, privacy, reputation, religion and belief, peaceful assembly, cultural rights, property rights, liberty and security.
The point about having fundamental rights statutorily enshrined is that they should then be capable of being judicially balanced against competing rights or other overriding legislative considerations.
In the Australian Capital Territory, the courts are required to interpret legislation in a manner compatible with human rights and the supreme court can issue declarations of incompatibility. There is a stand-alone cause of action for breaches of rights by ACT public authorities, but the remedies do not include damages.
Even so, the ACT human rights commissioner has said that the ACT “had rarely made a difference to the actual outcome of cases, and the direct right of action remained under-utilised”.
The Commonwealth went through a human rights flutter in the Rudd era when, in 2008, Father Frank Brennan was appointed to chair a national human rights consultation. On behalf of the Liberal party, George Brandis said that “a statutory bill of rights is not the best model for advancing human rights”.
Tony Abbott warned that, “Bills of Rights are leftwing tricks to allow judges to change society in ways a parliament would never dare”.
Brennan recommended a legislative compatibility model with the high court declaring existing legislation incompatible and referring it back to parliament for amendment.
Former high court justice Michael McHugh thought there were constitutional problems with that approach and it wouldn’t work.
We’ve ended up with a Commonwealth parliamentary committee that is supposed to scrutinise legislation for human rights compliance, but in the process we still managed to get rights-crushing data retention and the worst excesses of border protection.
McHugh has said it would be preferable for the parliament to give legislative effect to the International Covenant on Civil and Political Rights and “if thought necessary” the Covenant on Economic, Social and Cultural Rights.
We’re in tribal territory here. Human rights are now locked into the ideological and cultural divide. You can join the dots: anti-human rightists are also likely to oppose same sex marriage, take a hard line on law and order, and detest the UN and its charters.
Yet, in an environment of increasing uncertainty and threat the last thing a civilised society should do is close the door on its humanity.
As Churchill is supposed to have said, but no one can find the exact quote: “After all, what are we fighting for?”