Human Rights And Anti-Discrimination Law
Should Australia Have A Bill Or Charter Of Rights?
The question of whether or not Australia should have a bill or charter of rights is both a highly controversial and heatedly debatable topic. There are many arguments for and against such a charter and both sides have their advantages and disadvantages but there is apparent evidence that there have been human rights violations by Australian governments throughout Australia. These rights are presently unshielded by the law.
The argument against an Australian bill of rights seems to be supported by people who feel that they have elected governments and politicians to enact legislations to protect their freedoms and therefore do not need a bill of rights as part of the law because they are sufficiently guarded. Justice Michael Kirby states that
The primary argument of the critics is that there is no need for us to change our institutions and adopt a charter of rights. The strongest voices expressing this view tend to be those of politicians and sections of the media. It is natural that those who enjoy unbridled power generally resist the attempt to impose any bridles. Why would they welcome legal checks or restrictions beyond those that they are presently saddled with? And, in fairness, occasional articles are published putting the opposite point of view and criticising the errors and exaggerations of the opponents.
These are the individuals who have not had their human rights infringed upon thus far and so consider the current system to be working for them. Another argument to support this notion is that Australians live side by side contentedly as a vastly diverse nation and have done so for many years. A bill of rights would be restraining and essentially would not introduce any fundamental human rights that we don't already enjoy.
In further discussion of this argument, the existing system of protecting human rights in Australia through common law and elected government
representatives has done for this country what a bill of rights has not been able to do for others and as said by Sir Harry Gibbs, former Chief Justice of the High Court,
‘In Australia there seems to be no reason to fear such gross violations of human rights as those which regularly occur in some other countries. . . . The common law has proved to be a flexible and effective instrument for the protection of freedom and the mitigation of injustices that might otherwise be brought about by ill-considered legislation.'
There are many examples where countries with a constitutionally entrenched bill of rights have not had the desired effect of protecting the freedoms and liberties of its citizens. Some recent examples would be the case in Malawi where the government attempted to convict two people for breaking laws against homosexual conduct after they went through an engagement ceremony which is a blatant violation of basic freedoms regarding sexual orientations and the recent arrest of two nationals of Venezuela for publically criticizing the government is in contradiction to freedom of expression in Venezuela. Another such case is the arrest of artist, Owen Maseko on 26 March after participating in a show at a national art gallery, which depicted the atrocities that took place in western Zimbabwe during the 1980s where thousands of people were killed, mainly by state security agents. The defendant has been detained and is facing a number of charges, all of which are a direct violation of freedom of expression, which is in fact entrenched in Zimbabwe's bill of rights, among others. It is thus arguable that some countries that have a constitutional bill of rights are in reality worse off than the nationals of Australia who do not.
Furthermore, it could be contended that because Australia has ratified most of the important human rights treaties implemented by the United Nations such as the ICCPR, the CERD, the ICESCR, the CEDAW, the CAT and the CROC, under which it already has obligations to protect certain human rights, a bill of rights is unnecessary. An illustration which reinforces this argument may be the case of Minister for Immigration and ethnic affairs v Teoh where the High Court accepted Australia's obligations under the UN treaty of the rights of the child even though the treaty had been ratified but not yet implemented. This strengthens the notion that a bill of rights is excessive as human rights are already protected by the various human rights treaties that Australia has ratified. The government has also taken steps to ensure that aboriginals, the disabled and other minorities have equal rights and freedoms.
Another argument against a bill of rights for Australia is the concern that the real benefactors of such laws would be the corporations and the wealthy as they are considered to be those who can afford access to the courts and that they would take advantage of it. On that note, there is a widespread belief that a bill of rights would be expensive to develop and implement.
Additionally, in the case of a constitutional bill of rights, it is perceived that a bill or rights would see a shift of power from the elected representatives (parliament) to the unelected judiciary which ‘could undermine the legitimacy of both institutions, in return for a largely uncertain impact on the protection of human rights' and would result in a significant violation of the separation of powers thereby reducing the parliaments sovereignty. As for the minimalistic method of a statutory bill of rights, the government seems to be under the impression that the community would become so dependent on the rights contained in such a bill, that it would be too difficult and controversial to amend it.
It is commonly thought that Australian citizens should rely on the good-sense, acceptance and even-handedness of society to protect, respect and not infringe upon one-another's human rights but perhaps the most false concept of all is that human rights would actually be inhibited by defining specific rights, because then they would be limited to what is specified in the bill of rights and individuals would ignore any rights not contained therein. In fact, it is the contrary. To define rights and liberties in either a statutory or constitutional charter would result in them being taken seriously and not disregarded as they presently are. To ensure that our rights are legally protected is to elevate them to a certain level of importance worthy of respect.
Through extensive research, it seems that the argument in favour of a bill of rights is significantly more convincing. As Australia is the only western democracy without such a document, in order to re-establish its standing as a country which respects and defends the rights and liberties of all people, a bill of rights is essential. In fact, much of the community is under the impression that Australia already has a charter of rights.
Although there are many persuasive arguments against the idea of a bill of rights, there are many more substantial incentives in favour of one which. To start with, ‘contrary to what has been suggested by Charter opponents, the introduction of Charters in the ACT and Victoria has not led to a flood of litigation that the Government has had to spend money defending.' Although it is to be expected that there will be various expenses to introduce such a charter, the benefits and importance thereof would offset the cost by far.
The indication that the implementation of a bill of rights would cause a shift of power from the parliament to the judiciary is not necessarily a flawed factor. In fact ‘a restriction on the ability to legislate in defiance of human rights appears highly desirable in a liberal society and it is difficult to envisage why, under ordinary circumstances, a democratically elected government would wish the contrary.' Additionally, an argument against a bill of rights for the reason that it gives more power to the judiciary is unfeasible because we already have a constitution which gives the judiciary a great deal of power but one would not argue that we should not have a constitution on those grounds so therefore it is a not a valid argument.
One of the purposes of such a bill is to protect the community's human rights against the misuse or abuse of power by the parliament. There is presently no system in place to weigh-up proposed laws against human rights standards meaning that government can legislate in contradiction thereof, often without much parliamentary debate or consideration. There are people in our community who lack human rights protection. It is crucial that the vulnerable such as children, the indigenous, migrants, the elderly, the homosexual and other minorities who are legally disadvantaged in our community, are protected. In ‘Teoh', although the rights of the child were enforced in this case, it was not guaranteed as it was a decision made based on an international treaty unfounded in statute and could easily have gone the other way in favour of contradicting legislation. In comparison, the rights of the child would have been irrefutably guaranteed in a country like South Africa where such rights are preserved in the constitution.
Moreover, there have been other cases in Australia where the outcome has not been a triumph for human rights. One only has to think of examples like the ‘stolen generation' and cases like Bakhtiyari v Australia. Mr Bakhtiyari's five children were incarcerated for over two years during which they suffered mental trauma and ill health. The ratified charter proved to be completely ineffective in that instance as the UN pinpointed a number of human rights violations of the Bakhtiyari children but section 28 of the South African Bill of Rights would have constitutionally protected the Bakhtiyari children from these violations.' Even more horrific was the case of former child detainee, Shayan Badraie. Badraie suffered severe trauma after witnessing attempted suicides, riots and violence during his almost two year incarceration which violated the rights contained in article 3, article 6.2 and article 16 of the conventionamongst others, thereby proving that although Australia has ratified most of the important human rights treaties, these rights are not legally enforceable.
According to reports, close to 3900 child refugees have been detained across Australia since 1999. This is consequently a significant reinforcement for the argument for an Australian bill of rights.
Another recent human rights protection issue is concerning counter-terrorism laws. The Australian government has introduced 40 new, some very brutal, counter-terrorism laws as an aftermath to the occurrence in the U.S on September 11th 2001 even though, in actuality, there were no terrorist attacks in Australia itself. These laws can have a negative effect on
The right to a fair trial
The right not to be subjected to arbitrary detention
Freedom from torture and cruel, inhuman or degrading treatment or punishment.
The right to freedom of expression
The right to freedom of movement
The right to privacy
The right to non-discrimination
The right to an effective remedy for a breach of human rights.
Although these rights are incorporated into the ICCPR and are thus thought to be protected under international law, the problem is that they have not been assimilated into domestic law and so do not provide adequate protection. A bill of rights could ensure that all anti-terrorism laws comply with human rights obligations.
When examining the human rights situation in Australia, there are a few prominent cases which corroborate the need for a bill or charter of rights in Australia. To begin with, the current system lacks protection for the right to equality before the law. This means that there are no laws in place to illegalise discrimination based on sexual preference for example. Another is the right to liberty and security of a person. Referring back to the point on harsh anti-terrorism laws, this was established in the case of Mr Haneef who was lawfully detained without any charge for just over 260 hoursunder Australia's counter-terrorism laws and under the suspicion of being involved in a series of failed suicide attacks in the U.K, indicating that legislation occasionally contradicts human rights obligations. The only resolution is to have a constitutionally entrenched bill of rights which cannot be trumped by conflicting legislation. However this is not to say that a constitutional bill of rights is the only option. A statutory bill would be sufficient as a step forward and would make human rights legally enforceable in domestic law.
As pointed out by Noel Cranswick, It is arguable that the group most susceptible to human rights violations in Australia are the Aboriginals who have been discriminated against from the very beginning when their land was declared terra nullius. Tukiar v R and ‘Mabo's case' were explicit examples of the courts attempt to reverse the effects of such violations and to give indigenous people the rights they are entitled to. However, this was all due to the courts good-judgement and the outcome was not guaranteed. In a similar South African case, Alexor Ltd v Richtersveld Community also examined the question of indigenous land rights however the crucial difference is that in that case South Africa's constitutionally entrenched bill of rights supplied the court with a level of binding direction leading to the possibility of a definite outcome of the judgement. Moreover, human rights violations can be prevented by having a bill of rights eliminating the need to have said litigation in the first place.
Whilst recognizing that the vast majority of Australians already enjoy an enviable degree of freedoms and opportunities in one of the most democratic countries in the world, through thorough observation of the legal system in this regard, the myth that the current political system is the best defendant of human rights in Australia, has by the many cases of gross human rights violations in this country, been proven wrong.
It is evident that a bill or charter of rights is not to the nation's detriment but to its benefit. It seems that the majority of Australians also believe this to be true as:
A systematic and extensive survey of popular opinion conducted in 1993 found that 54 per cent of Australians did not think that human rights are well protected under the existing system. Seventy-two per cent were in favour of the Adoption of a Bill of Rights and 61 percent believed that the final decision in relation to human the publics' rights matters should rest with the courts rather than the Parliament.
Owing to all the arguments presented above it is clear that a bill of rights is necessary for Australia, not only to put it in line with the rest of the world and to meet all the obligations under the various treaties that have been ratified, but also to emphasize the fact that human rights are universal for all humans regardless of race, age or nationality and should be put above politics and be protected from arbitrary governmental exploitation. It would improve policy-making to make sure that all proposed laws comply with human rights therefore ensuring a higher standard of life for all Australians. A bill would promote the respect and acceptance of our fundamental rights and liberties as well as encourage tolerance and awareness in the community. It would empower those who are vulnerable and guarantee equality for all, not just the majority whose rights have not been infringed upon. Additionally our democracy would be enhanced in that way.
It has thus been concluded that Australia should have at least a statutory bill of rights however given the argument above there ought to be enough evidence to induce a constitutional bill of rights as the parliament should find it to be in the public's best interest. Offcourse given the circumstances, it is still acknowledgeable that ‘a charter is not the only way of protecting human rights and a charter alone will not protect human rights. We still need all the protections offered by our democracy, existing legislation and the common law system. But they would not change; and considering the current gaps in human rights protection, we need to take another step to strengthen them. That step is the adoption of an Australian Charter of Rights.'