Bill of rights there for the taking

By Pam Walker
For years Australia has been the only western democracy without a bill of rights but the next six months provide an opportunity to change that.

But whether the right to free speech and other human rights are enshrined in law very much depends on how people respond to an invitation, issued on December 10, to let the Government know what rights and responsibilities should be protected.

Attorney-General Robert McClelland launched the consultation process to coincide with the 60th Anniversary of the Universal Declaration of Human Rights, appointing Jesuit priest and professor of law Father Frank Brennan to head a consultation panel that includes former Northern Territory police commissioner Mick Palmer, journalist Mary Kostakidis, and lawyer Tammy Williams.

Speaking at NSW Parliament House, Mr McClelland said an Australian Bill of Rights could promote religious tolerance, equal opportunities for women in the workforce, and a higher standard of living for indigenous Australians. He also said ‘no level of violence’ against women was acceptable and more could be done for the disabled.

The people have been asked to give their views on these three questions by May 29.
1. Which human rights and responsibilities should be protected and promoted’
2. Are human rights sufficiently protected and promoted’
3. How could Australia better protect and promote human rights’

The Coalition has already declared its opposition to the idea, and like other critics, argues that a bill of rights would transfer power from the elected Parliament to the courts.

One of the most prominent critics is former NSW Labor premier Bob Carr who has advised Prime Minister Kevin Rudd to dump the idea, telling The Australian Online he didn’t think it would ‘take off, politically’.

Mr Carr said the people had already rejected a bill of rights in the 1988 referendum.
‘No one can object to a process of consultation but Australia is one of the freest countries in the world and our freedom rests on the common law tradition, freedom of speech and the healthy give-and-take parliamentary democracy,’ he told The Australian.

Many disagree, including High Court Justice Michael Kirby and human rights lawyer Julian Burnside.

‘The rights protected by a modern bill of rights are ‘ broadly speaking ‘ the sort of rights addressed in the Universal Declaration of Human Rights which Australia adopted in December 1948,’ Mr Burnside writes.

‘It would be difficult to find any serious disagreement about the nature of those rights: freedom from arbitrary detention, freedom from torture, freedom of thought and belief, equality before the law etc. What is odd is that some people do not want to see those rights protected by law.’

In August, Justice Kirby told critics of a Charter of Rights at the President’s Luncheon of the Law Institute of Victoria: ‘A statement of basic rights, constantly before Parliament and the citizens could encourage legislation that is respectful of the fundamental human dignity of all citizens. Would that be such a bad thing”

On the contrary, Justice Kirby thinks it could stimulate the democratic process, which some Australians feel has slipped out of the hands of the people and into the ‘relatively few hands of political organisations whose focus is on winning elections and power’.

‘A country, such as Australia, which has seen such serious injustices contrary to fundamental human rights – to women, to Aboriginals, to Asian people, to homosexuals, to religious minorities and others – can hardly say that there is no need for the democratic lawmakers to have an occasional stimulus based upon fundamental principles of equality and basic human rights,’ he said.

And the Rudd Government has ruled out a US-style Bill of Rights, undermining the argument that a bill of rights would weaken the Parliament. The most likely model would be a charter of rights, based on the British statutory model, like that adopted in Victoria and the ACT.
Such a charter would outline a set of rights and require Parliament to ensure legislation complies with them.

There is considerable community support for this model.

Among its supporters is Dale Mills, human rights monitor www.humanrightsmonitors.org and author of the manual at www.activistrightsmanual.com launched recently with Meredith Bergmann for the Redfern Legal Centre.

‘This does not allow judges to overturn legislation but simply allows them to make a ‘declaration of incompatibility’. It is then up to the elected Parliament to let the legislation stand or to change it,’ Mr Mills said.

‘Having a bill of rights will work in the way academics have spoken about – redressing the rights of ordinary people against a too powerful government. But it will be taken up by ordinary people in their everyday interactions.

‘If people are told they will be fined if they hand out political leaflets on a street corner to passersby, as the Sydney City Council has planned to do, individuals will stand up for themselves. They will say ‘I will fight that, because the bill of rights says I have freedom of expression’.’

And public opinion in favour of a bill of rights has been growing.

This year 60 organisations joined Human Rights Act of Australia, set up in 2005 and headed by Susan Ryan, to form the Australian Human Rights Group (AHRG) to work for better protection of human rights through a law that reflects community involvement and agreement.

‘Australia has a huge gap in its national laws. We are the only democracy lacking a comprehensive charter or human rights act to protect basic rights such as freedom of speech, of movement, of religion, of association, the right to vote, to a fair trial, freedom from torture, freedom from detention without trial,’ Ms Ryan said.

‘This gap came into sharp focus in 2005 when innocent children were detained behind barbed wire, asylum seekers were condemned to indefinite detention, a mentally ill Australian woman [Cornelia Rau] was jailed then held in immigration detention, another severely ill Australian citizen [Vivian Solon] was deported to the Philippines, and indigenous communities were left without basic services to spiral into violence and despair.’

Ms Ryan said a charter would create greater focus on human rights in Parliament and in the legislative process before a Bill becomes law.

‘We want our Act to become a change in culture rather than a change in our system of government, making ministers and members of parliament aware of any law’s impact on human rights. If that were to happen, we’d see fewer violations.’

Such an Act would protect the mentally ill, the aged in nursing homes and the disabled, she said, and would have made difficult the mandatory detention of children and violations of freedom of speech like the sedition laws.

Ms Ryan congratulated the Rudd Government, especially Mr McClelland. ‘Allowing six months for people to make their views known is very democratic. I hope it leads to results but the process itself is something the government should be commended on,’ she said.

Advocacy group GetUp has also launched a vigorous national campaign at www.getup.org.au/campaign/YourRights

‘Australia is the only democratic country in the world without formal human rights protections. That’s how our governments have got away with keeping children in detention, with leaving indigenous people without adequate housing, health and education services, and with human rights abuses that take the form of bureaucratic bungles and discrimination.’

GetUp warns that opponents are counting on lack of community interest to sink the idea, but points to the huge numbers ‘ more than 300,000 ‘ who have joined its human rights campaigns like the one to bring David Hicks home.

But they argue that even freedom of speech and freedom from torture are not guaranteed in Australia and a modern democracy shouldn’t have to rely on community outrage to ensure laws and decisions are right and fair.

‘We need to find a way to make sure that human rights are taken into account when decisions are made, so that nobody falls through the cracks,’ director Simon Sheikh said. ‘Tell the Government it’s time for an Australian Human Rights Act.’

Rachel Evans from Community Action Against Homophobia (CAAH) wants a constitutional guarantee that all people are created equal.

‘A bill of rights would make it hard for governments to pass laws like the same-sex marriage ban of 2004 and the civil union ban of 2007. America could not pass such a marriage ban due to their bill of rights. But we need action not just words. A bill of rights combined with marriage rights and civil unions would mean such a bill would hold real meaning.’

And Justice Action’s Brett Collins said nothing short of a constitutional guarantee would protect the rights of prisoners to family contact (Corrective Services has cancelled Christmas Day visits again) and the right of association that would stop management deliberately placing prisoners in antagonistic situations, sometimes at the peril of their lives.

‘We support the idea but it should be the early stage of introducing a similar bill of rights as that in the US. And it would need to be properly applied and enforced,’ he said.

Give your views about an Australian bill of rights at http://www.humanrightsconsultation.gov.au/www/nhrcc/nhrcc.nsf