The Eureka Flag
Yesterday the Rudd government announced that it will not give us a Human Rights Act. In the same week that the government reopened the cruel Curtin Detention Centre, it is a tragic missed opportunity.
The Government engaged in a National Human Rights Consultation, under the leadership of Father Frank Brennan AO. It was the most extensive public consultation in Australian history receiving and considering over 35,000 submissions - an unprecedented number, and overwhelmingly in support of a Human Rights Act.
The Report of the Consultation found that human rights are insufficiently protected in Australia and recommended a Human Rights Act.
On 10th December 1948 the General Assembly of the United Nations passed the Universal Declaration of Human Rights. An Australian - Dr H V Evatt - presided over the United Nations for the passage of that historic declaration. After the passage of the Universal Declaration, the UN passed other great human rights instruments, including the International Covenant on Civil and Political Rights and the International Covenant on Economic Social and Cultural Rights. Australia ratified both these charters.
It is one thing for Australia to sign onto these treaties. It is another thing to put them into force as part of the domestic law of Australia. Until that is done, they remain largely aspirational, and without real force in the life of our nation.
Alone among all western democracies, Australia has never legislated to recognise and protect the rights set out in the Universal Declaration of Human Rights. The ACT enacted a Human Rights Act in 2004. Victoria enacted a Charter of Human Rights and Responsibilities Act in 2006. These are welcome first steps, but national leadership was required to give effect to these rights across our nation.
No one is suggesting a US style Bill of Rights entrenched in the constitution. What is proposed is an Act of Parliament, under which Parliament remains sovereign, but which directs the courts to consider and apply human rights principles. The courts will not be able to strike down legislation, but will be able to draw Parliament's attention to legislation which runs counter to human rights principles. Parliament may leave the legislation as it is, but may also amend or repeal the legislation to correct the problem. This is known as the "dialogue model", and is the kind of model used in the United Kingdom, Canada, and New Zealand.
Some argue that we don't need a Human Rights Act because totalitarian regimes like the old Soviet Union had bills of rights, and they proved ineffective to protect anyone. Legislated human rights protections in countries like the old Soviet Union, or Zimbabwe today, have no force because the rule of law has no support in such places. None of the laws have real effect because they are states governed by tyrannical regimes. But Australia is not like that. Our courts and police and public service have a culture of abiding by the law. No one can seriously suppose that if the parliament passed a law here it would be given no effect by the courts or those required to administer it.
Opponents of a Human Rights Act make the dire warning that it would be a "lawyer's picnic". Lawyers often have a poor reputation, but a Human Rights Act will not give them a "picnic". Bob Carr ran an Op Ed in the Australian on just this theme - warning that "Lawyers are already drunk with power". I have done a great deal of human rights work over the course of my career, and such work is usually for people with little or no resources - the powerless in the community - and it almost never pays.
The enactment of human rights legislation in other jurisdictions has not seen an explosion of litigation - in fact, almost no increase at all. Most of the effect of the charter has been out of court, in relation to decisions made by public authorities to better reflect their obligations to human rights. Typical examples have been allowing a gay surviving partner to take over the lease of a public housing unit, or preventing the separation of an elderly couple into different nursing homes after decades of marriage. Such litigation as has occurred has usually been in the context of giving an extra argument in cases that would have proceeded anyway. There is no lawyer's picnic in a Human Rights Act.
"Ah!" say the opponents of human rights, "A Human Rights Act transfers power to unelected judges." What utter nonsense this is. A Human Rights Act does not give power to unelected judges, but rather gives power to unelected citizens. Is it seriously proposed that people with human rights grievances could take them before Parliament? The suggestion is preposterous, and would abandon the powerless to the vagaries of political expediency.
Judges are unelected, it is true. They have to be to keep them clear of the political fray. They must decide contests between citizen and State. A Human Rights Act will direct them to consider particular criteria - namely human rights - in determining such disputes. Parliaments direct the courts to consider particular criteria in determining cases all the time. For example, section 15AA of the Acts Interpretation Act 1901 directs courts as follows:
In the interpretation of a provision of an Act, a construction that would promote the purpose or object underlying the Act (whether that purpose or object is expressly stated in the Act or not) shall be preferred to a construction that would not promote that purpose or object.
The Human Rights Act would perform exactly the same kind of work, asking judges to apply human rights, and defining what those rights are. This is entirely in conformity with the usual arrangements between parliament and the courts. Far from transferring power to judges, this tells judges how to exercise the discretion they already have.
The opponents of a Human Rights Act generated hysteria about it which was baseless. They did not shrink from fabricating accounts of overseas experience, often persisting in erroneous stories of cases even after the facts had been pointed out. Former NSW Premier Bob Carr, in particular, was shameless about this. The Australian ran articles which were often mendacious to the point of absurdity.
As Philip Lynch, director of the Human Rights Law Resource Centre has written:
Evidence and experience from Victoria and the Australian Capital Territory, both of which have their own Human Rights Acts, demonstrate that a national Act would promote more accountable government, improve public services, address poverty and disadvantage, and enshrine fundamental, unifying values. Instead, the homeless, the elderly, people with mental illness and children with disability — all of whom have been beneficiaries of human rights laws in Victoria and the ACT — must now wait at least another 4 years before their human rights are adequately protected and promoted at the national level.
A Human Rights Act would build a greater Australia. The government's craven submission to a scare campaign diminishes us all.