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OPINE: The case for a Bill of Rights

By Susan Ryan, Chair, Australian human rights act campaign

The public, like victims of human rights mistreatment and most Labor party members, don’t agree with Bob Carr’s suggestion that the status quo in relation to rights operates perfectly well.

Date:  23 May 2008

Sixty years ago, when Australia’s Foreign Minister Bert Evatt was the first President of the United Nations, and activist Jesse Street was representing us on UN working bodies, the nations of the world made the Universal Declaration of Human Rights. The Declaration became the building block of all modern rights instruments, now in effect in all democracies except Australia.

This exception is more than just an anomaly in the history of Australia’s proud contribution to international human rights. It constitutes a serious gap in Australia’s system of laws and allows much human suffering.

In 2005, under Coalition government policies, small children kept in immigration detention were driven ill and mad by inhuman conditions. Adults asylum seekers lacking documents were condemned to indefinite detention, a decision upheld (with considerable agonising) by the High Court of Australia. Agents of the government, principally its immigration department and outsourced service providers wrongly deported a seriously ill Australian citizen, Vivien Solon, casting her on the mercies of a church charity in the Philippines. A permanent resident suffering severe mental illness, Cornelia Rau, was detained by the authorities, sent to jail, and then to immigration detention.

Hundreds of similar abuses of individuals have since been documented by the Commonwealth Ombudsman.

These actions were perpetrated by our democratically elected government. Each action contravened UN human rights conventions already ratified by Australian governments. In the absence of national legislation embodying these obligations, Australian law did not prevent their occurrence, nor require parliamentary scrutiny or accountability in relation to them.

As with the enactment of rafts of anti terror laws restricting long established rights and freedoms in Australia, and the excision of parts of Australian territory to deny asylum seekers access to Australian law and assistance, parliament was not required to assess these decisions against agreed human rights principles. As a consequence, the public remained generally unaware.

Even so, recent surveys show overwhelming public support for a human rights law. The general public, like victims of human rights mistreatment and most Labor party members don’t agree with Bob Carr’s suggestion (Resist the zealots) that the status quo in relation to rights operates perfectly well, nor with his odd view that efforts to improve protection through a human rights law belong solely to zealots and greedy lawyers.

In our remote indigenous communities, where there are no schools children cannot exercise a right to education. Devastating violence and horrendous crimes rage in the absence of police support. Seriously ill community members can’t get health care, hence the Rudd-defined seventeen year life expectancy gap with non indigenous Australians. Is it zealotry to raise the issue of these Australians’ rights to education, health, and security?

Carr joins the argument with colourful illustrations of alleged misuse of the US or Canadian Bills of Rights, constitutional instruments both, as if they were the whole story. Charter opponents ferret out that tiny number of cases in the UK where people have sought, usually unsuccessfully, to invoke the UK Human rights Act 1998 for trivial or obnoxious complaints.

Why ignore the resounding support given by the Lord Falconer, the Lord Chancellor in the UK who after a thorough review of the operation of the 1998 Act concludes that it is an essential protector of the democratic society the anti terror laws are designed to defend. The Lord Falconer in recommending further development makes the sensible suggestion that more effort be made on guidance and training within government departments and wider public sector agencies.

This latter is an important if little recognised aspect of the whole debate. Abuses of human rights, though permitted by parliament, are actually carried out by the executive. From the ranks of the executive come those who make the wrong judgments, deport or lock up Australians on false grounds, and hire incompetent, unfit service providers.

If a human rights charter on our model were in place, all bureaucrats would need to be aware of its contents, and change their behaviour accordingly. Many potential wrongs would be prevented.

The Australian human rights act campaign (new matilda), started in 2005 as a community action, advocates a human rights act for Australia, based on our existing UN obligations, and operating as an ordinary act of parliament. Our model, see transfers no law making powers away from parliament to judges. It requires parliament to become the active guardian of those rights they, the parliament have agreed to legislate. In this way our model defuses the concerns of those who are opposed to any watering down of parliament’s powers.

Because it refers to the UN conventions and takes up well established rights traditionally assumed in Australia: freedom of speech, movement, religion, the right not to be detained without charge, the right to a fair trial and so on, and our model would not open the floodgates for the pursuit of “new” or “invented” rights. It remains the job of the parliament to decide which rights are protected, and the circumstances under which parliament, not the courts, may set these protections aside in the national interest.

If Attorney General Robert McClelland’s national inquiry into a human rights law reveals extensive community support, we may soon see that debate taking in place in the parliament, resolved by the parliament, and it is to be hoped, completing for Australia what was started in 1948 with the Universal Declaration. This development would define the Rudd Labor government, in the Labor tradition, as a vigorous protector of human rights at home as well as around the world.

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