Where is our human rights bill?
I was reading the other day that the federal government may have decided to put the plan for an Australian human rights bill on the back-burner, if not drop it all together. This is despite the fact that Australians expressed overwhelming support for some kind of document to enshrine our human rights in the government's National Human Rights Consultation led by respected Jesuit Frank Brennan. According to the final summary of the of the National Human Rights Consultation - Community Research Phase:
61% of survey respondents supported a system where the courts can tell Parliament if new legislation seems to impact on human rights of any groups in Australia – but with Parliament always having the final say on the law.
Later, it stated that:
Documenting rights more explicitly was widely supported in the focus groups (though not universally), and 72% of survey respondents agreed that it was important to have human rights explicitly defined rather than relying on a set of general principles.
So, what's the going here? Why the backtracking on this initiative for which there is broad community support? The fact that Australia is alone as the only western democratic nation with no human rights charter or bill, seems to be worn with pride by those opposed to one—in much the same way as the opponents in the US of Obama's health-care reforms seem happy to stand-alone among like nations in not having universal healthcare—pride in exceptionalism in both cases is no virtue.
Those opposed argue that Australia does not have a need for any human rights charter or bill, and that all our rights are adequately covered by the mish-mash of current law and legislation. This practical argument is about as convincing as saying that, as the majority of homes in a particular town haven't (yet!) collapsed on them, there is no need to have a systematic and comprehensive building safety code. It also fails to protect the most marginal and vulnerable amongst us.
The other argument against a human rights charter or bill by those opposed, is that it will (shock horror!), give unelected judges the power to overrule laws made by elected parliamentarians. There are two problems with this argument. First, most of the models suggested for an Australian human rights charter envisage judges declaring that a particular act of parliament seems inconsistent with the charter. This does not then mean, though, that the declared law then would be overturned by the courts. The process by which such a law could be overturned would rest with Parliament - as is presently the case. What a declaration does, is highlight that a proposed law may likely risk infringing rights and values that the human rights charter or bill explicitly protects. To me, this provides protection for individual people from populist government legislation, that may unfairly and unreasonably limit rights.
The other problem with this argument is that it implies that as things stand, without a human rights charter or bill, parliamentarians have no limits to the laws they can pass, based on human rights grounds, and that courts just sit by. In fact, under the Australian Constitution, there are a handful of human rights that are protected; among other things, freedom of religion (Section 116), and right to trial by jury for a (Commonwealth) indictable criminal offence (Section 80).
Let's take deep breath then and recognise that judges can and do already have the legitimate right to limit the laws that Parliament makes, if it infringes any of the above rights. So despite the vigorous arguments that unelected judges should have no place in limiting the laws that Parliament can pass, they already do so uncontroversially and with broad community support. The question then, in my mind, is whether these few rights that are already protected in the Federal Constitution dating from the end of the 19th century, should be updated to take into account fundamental human rights that Australians hold dear today.
Our politicians may feel that the can back-track on this initiative, and that it will be lost among the discussions about 'bigger' issues, such as health, the environment and the upcoming election. However, we, as the Australians who put them in power, should remind them that at the the end of the day the most undemocratic thing is when politicians fail to act in citizens' best interests and in accordance with their clearly expressed will - not when judges declare that a law may infringe citizens human rights. It seem to me that politicians who are opposed are afraid of being held more accountable for their actions, and on the flip-side, of empowering ordinary Australians. Not good enough in a democracy.
Posted
by Michael
