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Human Rights Defender |
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Nicolette Jones[*]
There isn’t much that will get me up at 4.20 in the morning, especially in winter. Friday 21 June, however, was the morning of a long-awaited conference, and this was worth the effort of leaving my sunny home town of Brisbane at such an hour.
The one-day 2002 Bill of Rights Conference was held in Sydney, New South Wales, at Parliament House. It was organised by the Gilbert and Tobin Centre of Public Law in partnership with the Australian Human Rights Centre, both of the Law Faculty at the University of New South Wales (UNSW).
The fourteen speakers offered a variety of perspectives and expertise and the day commenced with an address by keynote speaker Justice Sir Kenneth Keith of the New Zealand Court of Appeal. His fellow guest speakers were: Professor Larissa Behrendt of the Jumbunna Indigenous House of Learning at the University of Technology, Sydney; Dr Sev Ozdowski, Human Rights Commissioner with the Human Rights and Equal Opportunity Commission (HREOC); and Dr Annemarie Devereux of the Public Interest Advocacy Centre in NSW.
Later in the day were: federal Attorney-General the Hon. Daryl Williams; Shadow Attorney-General Mr Robert McClelland; Western Australian Senator Brian Greig; Ms Julie Debeljak of the Castan Centre for Human Rights Law at Monash University; Professor Leon Trakman, Dean of the Law Faculty at UNSW; and Justice Elizabeth Evatt, currently of the World Bank Administrative Tribunal and a former member of the UN Human Rights Committee.
Among the last to speak were Ms Megan Davis of the Gilbert and Tobin Centre of Public Law at UNSW; Mr Bret Walker, President of the NSW Bar Association; and Professor Hilary Charlesworth of the Centre for International and Public Law at the Australian National University. Finally, Mr Chris Sidoti, former HREOC Human Rights Commissioner, closed with a summary of the day’s proceedings.
Although this report of the Conference is unable to discuss all the speakers, the following highlights from some of the day’s papers may suggest new directions and stimulate further thought and debate on this topic.
Why does Australia need a Bill of Rights, you ask? As we are often reminded, we are a prosperous and democratic nation whose strong common law tradition, legislative safeguards and Human Rights and Equal Opportunity Commission combine to ensure that all Australians are fully and adequately protected.
Professor Larissa Behrendt dismissed this assertion with simple eloquence. She observed that although she is often told “if the system ain’t broke, don’t fix it”, this claim only comes from people for whom the system is working. This is not the case for Indigenous peoples in Australia. Behrendt pointed out that her own mother was sent out to work at a very young age, while both her parents were taken away from their families and traditional lands.
International obligations which are enshrined in legal protections such as the Racial Discrimination Act (1975) can be amended or repealed by the government of the day, as occurred with the amended native title legislation in 1998. Similarly, 100 years after its drafting, during which time women and Indigenous peoples have had to struggle for a number of basic rights, the Australian Constitution does not adequately reflect contemporary human rights standards, particularly with regard to Indigenous rights to land, family and cultural heritage.
A Bill of Rights would help to create a “culture of rights” in Australia, in which citizens would know that they and others are the bearers of rights, and the nature and extent of those rights. “The question should not be,” Behrendt concluded, “why have a Bill of Rights? The question should be: why not?”
When Dr Sev Ozdowski arrived in Australia with his parents, as refugees, he believed that Australia was open to newcomers, that an Australian Bill of Rights would be useful - but not essential. Now, he said, judging by events in recent years, “Australia’s democratic safeguards need freshening up.”
Dr Ozdowski observed that many Australians don’t know or think much about their rights. They tend to believe that ‘human rights’ are a concept imposed from above by distant international bodies, that a democratically elected government and an independent judiciary and press are sufficient to protect human rights, and that a Bill of Rights might even be ‘un-Australian’ in our culture of ‘a fair go’ for all.
For him, this was evidence that Australia and its citizens have never had to struggle against massive and systematic human rights abuses.
In Australia, the system has worked reasonably well for most white Australians, but massive structural changes in the last thirty years, including changes in labour markets, trade and globalisation, require that human rights protections be rewritten. Currently there is a “civil liberties black hole”, in which the capacity of individuals to protect their rights is severely limited. At the same time, people are increasingly resistant to change, although they tend to support a Bill of Rights when it is made clear to them that this would set out the basic rights and freedoms of individuals and protect civil liberties.
Dr Ozdowski’s preferred model of a Bill of Rights would offer a simple statement of fundamental rights, and should be statutory rather than constitutional. He called on Australians not to be intimidated by the magnitude of possible changes involved in creating a Bill of Rights, saying that this debate was “a real political opportunity” for legislators to empower people by introducing a Bill of Rights. He noted in conclusion that the worth of a protection should be measured by the worth of the individuals it is protecting.
Dr Annemarie Devereux discussed the public consultation process involved in the recent development of a Bill of Rights in East Timor, noting that the Bill of Rights debate must not be left to a small group of experts: the concepts and information must be explained to everyone in the community.
A Bill of Rights should protect economic, social and cultural rights, and even if the State cannot deliver these, it must work towards that goal. Any concerns over economic, social and cultural rights must be addressed at the time of framing of a Bill of Rights, as they are fundamental human rights and must go hand in hand with civil and political rights.
A Bill of Rights should also give particular attention to the rights of women and Indigenous peoples, as well as focussing on the rôle of multinational corporations in the community.
Dr Devereux offered several questions to be considered: How to make the issues surrounding a Bill of Rights accessible to all Australians? How to make sure that everyone takes part in the debate over a Bill of Rights? How to encourage people who believe that they are already protected? Whose rights should be included? And against whom are these rights to be enforced?
The next speaker, Attorney-General Daryl Williams, provided a dissenting voice in the debate: “I am convinced that there is no need for a Bill of Rights in Australia.” In support of this claim, Williams noted the existence of Australia’s strong democratic institutions (in which he included HREOC), common law safeguards (citing the Mabo case and the development of native title as examples), and statutory protections (including the three federal anti-discrimination Acts). Where there were “gaps in human rights protections” it was the responsibility of the legislative arm of the government to fill these gaps, as it had done, he noted, in the case of disability legislation.
Mr Williams observed that Australia is unique, with its own peculiar set of circumstances, and should not be judged by international standards nor compared to other countries such as the United Kingdom, for example, which has an unelected House of Lords. He concluded: “We have a human rights record that is the envy of the world.”
Shadow Attorney-General Mr Robert McClelland rebutted several of Mr Williams’ claims in passing. He noted that common law has frequently proved to be demonstrably inadequate in protecting human rights, even in recent times, permitting poor labour standards, policies leading to the ‘Stolen Generations’, and State and Territory mandatory detention legislation.
Mr McClelland raised the argument of competing policy priorities in a Bill of Rights debate and the extent to which human rights may be considered a luxury and a policy to be balanced against other policy imperatives. In the final Bill of Rights model, he suggested, there should be a mix of rights and security, rather than sacrificing individual rights for the good of community security.
Professor Leon Trakman observed that the Bill of Rights debate in Australia was still in its early stages: should we have one or not? The debate over later questions would be more important: what rights will be protected?
He warned that the existence of a Bill of Rights was not in itself a guarantee of human rights protection. Many African countries have adequate constitutional and legislative rights and freedoms, for example, but lack the infrastructure to support them or the possibility of enacting or enforcing them.
“There must be an issue-driven reason to have a Bill of Rights in a nation,” he explained. Although the Bill of Rights does not have to be based on that issue, there must be a discussion of rights and the nature of rights, including the possibility of conflicting rights: ‘third-generation’ group rights such as Indigenous self-determination, language and cultural rights, and multicultural rights; the rôle of courts in interpreting rights and freedoms, especially general ones, can lead to “flexible construction” and conflicting decisions, which is also part of the fabric of a democratic society; and the rôle of governments, who regularly limit rights with politically expedient legislation.
Justice Elizabeth Evatt also raised questions to be discussed in developing a Bill of Rights for Australia: whether and when to have to have such a Bill, and whom to trust as the guardians of rights? An “independent judiciary” – and Justice Evatt noted that she used this term deliberately in preference to the oft-heard and more dismissive “unelected judges” – should play a very important rôle.
Justice Evatt commented that there might be less need for a Bill of Rights if Australia took notice of international treaty bodies with regard to human rights protection – but the current government is not. Justice Evatt observed that “in even the most democratic and ‘fair go’ of countries, the government can sometimes ride roughshod over individual rights...” and in her opinion, “it would seldom be necessary for an individual to complain to the UN if they were able to seek satisfaction from domestic courts.”
Mr Bret Walker observed that the Australian government should enact the required legislation to enable national compliance with the international obligations which Australia has voluntarily undertaken to respect. He suggested that all parliamentarians be required to keep copies of international treaties beside them when legislating, to reinforce the importance of these treaties and to ensure that they know and enact them.
Mr Walker also offered a suggestion to resolve legislative inconsistencies: that a provision be inserted into the Commonwealth Acts Interpretation Act 1901, which guides legislators and the judiciary on how a statute is to be understood, requiring all subsequent legislation to comply with and be valid to the extent of Australia’s international obligations. This would have the added benefit of reassuring those in the community who distrust ‘world government’, since it would locate the implementation of Australia’s voluntarily-assumed international obligations within Australian jurisdiction.
This overview of many of the issues raised during the day indicates the range of the debate: the initial decision of whether to have a Bill of Rights, whether it should be constitutional or legislatively-based, and the “later questions” to determine the nature and extent of the rights to be protected, including remedies, arbitration and enforcement mechanisms.
Professor George Williams of UNSW opened the Conference by saying “We will not tell you whether we are for or against a Bill of Rights...but we do hope we get one.” After that, it was clear that most of the speakers, with the exception of the Attorney-General, favoured the adoption of a Bill of Rights.
Mr Chris Sidoti, summarising the day’s debate, observed that only three speakers had “pinned their colours to the mast” by openly supporting a Bill of Rights for Australia: an Indigenous woman, a former refugee and a gay man. Perhaps, he commented, this is because “those who are in danger of suffering human rights violations are those who are most enthusiastic about its protections. Australians haven’t had to struggle, haven’t had to work hard for the democracy we have today.”
Public debate, he concluded, must be stimulated. Community debate and support are essential on this most fundamental of topics, and the community must listen to voices of experience and bridge the “chasm of experience” described by Professor Behrendt, so that all may be convinced of the “broken-ness” of the system and the need to fix it.
[*] Nicolette Jones is currently completing her PhD at the School of Languages and Comparative Cultural Studies and the TC Beirne School of Law, University of Queensland, studying social, political and legal issues of religious discrimination.
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URL: http://www.austlii.edu.au/au/journals/HRightsDef/2002/19.html