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Human Rights Acts – Common Misconceptions
A Human Rights Charter / Act is needed to provide an Australian framework by which our society can more transparently and consistently protect and promote the human rights of all Australian society. A Human Rights Act is not a Bill of Rights and therefore not part of our Constitution. The following is a list of common misconceptions about Human Rights Acts:
“Our rights are well protected by our Constitution, the Courts and the tradition of Common Law as well as the International Conventions signed by Australia.”
The Constitution: Our Constitution was written at the end of the 1800s. It excluded many points of
view, so it was not framed democratically. The intention was to form a treaty between the States, so they would agree to Federation. Those who framed the Constitution were not particularly aware of or interested in the rights of ordinary people.
Only six rights are mentioned in the Constitution:
1. The right to vote (§41)
2. The right to not lose property to the Commonwealth except on just terms (§51)
3. The right to trial by jury (§80)
4. The right to travel and conduct business freely between the States (§92)
5. The right to freedom of religion (§116)
6. The right to freedom from disabilities and discrimination based on which State
you live in (§117).
At present laws can be made that breach fundamental rights. S.51(xxvi) allows different laws to be made based on race. The framers of the Constitution wanted to be able to discriminate against people based on their nationality. Since 1967 this section has enabled discriminatory treatment against Indigenous people too.
The Constitution ignores many fundamental rights: the right to freedom from torture; the right to life; the right to freedom from discrimination based on race, gender, age, disability and so on. As the Constitution was framed long before the Universal Declaration on Human Rights it does not include many of the rights recognised in the Declaration. The Universal Declaration on Human Rights was agreed to after the atrocities of WWII.
A Human Rights Act would create one document that clearly sets out the rights of every
person living in Australia. It would provide the means to check that all legislation, past and
future, be consistent with human rights principles.
Past decisions by judges establish precedents. These then guide future legal decisions.
This process creates a very complex body of law and principle that is difficult to understand and follow. A clear statement of Human Rights in one place will help clarify these lessons of history and make them available for everyone to understand and follow.
Australia has ratified many international covenants. They include:
• The International Covenant on Civil and Political Rights (ICCPR)
• The International Covenant on Economic, Social and Cultural Rights (ICESCR)
• Refugee Conventions Against Discrimination against Women
• Rights of the Child
However, Australia failed to honour its international legal obligations by making these covenants part of Australian law. This renders these major international agreements largely ineffective inside Australia. The introduction of a Human Rights Act would enable International Covenants to become effective under Australia law.
“Australia is a democratic country. Therefore, our rights are well protected. We have the power to vote politicians in and out of office.”
One of the lessons of history is that people seek to increase their own power. Often, when people are powerful, they increase theirs at the expense of others'.
Democracy is still considered to be the best solution to this problem by trying to ensure that power remains in the hands of different groups such as:
• Opposing political parties;
• Different levels of law-making such as the House of Representatives and the Senate;
• Ensuring the courts (those who enforce the laws) are separate from the politicians who make them.
This is called a system of 'separation of powers' or 'checks and balances'.
Politicians tend to vote to increase their own power. A recent example is their response to recent bikie violence in NSW. State politicians from both major parties voted in favour of laws to declare organisations illegal, a breach of the right to assemble. They did this instead of investigating the police force's seeming incapacity to enforce existing laws against criminal behaviour. The politicians' solution is cheaper, asks fewer searching questions into the difficulties of law enforcement and gives politicians more power.
A Human Rights Act would provide a safeguard so parliament cannot disregard human rights when developing or implementing policy, laws or public services.
Elections: Ordinary people participate through elections that are an important part of a democracy. Australian Federal elections are held once every 3 years. The practical reality is that the public debates that occur at election time tend to focus on a few 0issues judged to be important by political parties and often the debate is oversimplified, reducing complex issues to political slogans.
Relying on this process as the only input by ordinary people into decision-making is not sufficient. Many difficult and complex decisions have to be made between elections.
Good democratic practice requires ongoing public debate and good debate needs a clear framework of core values that everyone agrees with. Fundamental Human Rights are the best expression in today's world of what those most commonly shared values are.
A single clear statement of our most commonly shared values in a Human Rights Act would enhance the quality of democratic debate and practice.
“A Human Rights Act would weaken democracy by taking power away from elected members of parliament and giving too much power to judges.”
• Human rights are democratic by their very nature.
Rights such as the right to recognition and equality before the law, freedom of thought and conscience, the right of association and assembly, and the freedom of expression are
the very principles upon which democracy is established. They make democracy possible by enabling all people to have the capacity and opportunity to meaningfully participate in and contribute to our shared political, economic and social life.
• No blank cheque: A Human Rights Act would not present judges with a blank cheque to do as they like. They would use the Act to apply fundamental human rights principles in making judgements and in screening new legislation to ensure consistency with the Act. Human Rights principles limit the power of authorities – both political and legal – because laws cannot be made or interpreted in ways that
abuse people's fundamental rights. They do not give more power.
• Accountable to ordinary people: Only judges and lawyers can properly understand how our complex common law operates. An Act would enable ordinary people to understand clearly how the law should protect them. Court decisions will be more clearly open to public understanding and criticism.
• Improves accountability: When there is a need to review how government departments have acted in carrying out a law, a clear statement of Human Rights Principles will mean that the law is more likely to be interpreted in accord with human rights. For example, a recent inquiry was held into how the Department of Immigration could have detained an Australian resident for so many months on
the suspicion that she was an illegal immigrant. The commissioner had to resort to principles outside the Migration Act such as fairness, but had no clear guide as to what they should be.
“Australia's system has served it very well over the last 110 years.
- If it ain't broke, don't fix it!”
There have been many examples of human rights violations by government departments, law enforcement agencies and by the laws themselves. Some recent examples include:
• The government's Pacific Solution sent asylum seekers, including children, offshore and held them
in mandatory detention indefinitely. This policy included many children who suffered extraordinary trauma inside the detention centres witnessing people who self-harmed to protest their imprisonment even to the point of suicide.
• Australian residents have been illegally detained and deported.
• People who claimed political asylum have been sent back and have faced torture, unjust Imprisonment and even death, either themselves or their children and family members.
• The high infant mortality rate for indigenous Australians.
• The high rate of deaths in custody for indigenous Australians within the juvenile justice system
• The 17-year gap between the average life expectancy of indigenous Australians and the rest of the
Australian population [http://www.hreoc.gov.au/Social_Justice/health/statement_intent.html]
• The high rate of deaths in custody for indigenous Australians within the juvenile justice system
• The government's NT Intervention has suspended the Racial Discrimination Act 0arguing that it is
necessary to protect aboriginal children but has failed to do that also.
• Anti-terrorism laws that violate the right to a fair trial, freedom of speech and association without transparency or adequate explanation
• People with disability lack access to basic services such as transport, education, employment and
• Passing legislation like WorkChoices denied many employees freedom of choice, equity and selfdetermination in work place relations.
• Inadequate legal aid funding has led to lack of legal representation of those who are poor
and socially disadvantaged.
• Censorship laws limit our freedom of speech.
• “New South Wales authorities are secretly combing through the phone records of more than 90,000 people a year. The figures have come to light in the Attorney-General's annual report on telecommunications interceptions, and civil libertarians are among critics demanding to know why.”
A Human Rights Act is needed to promote and protect the human rights of all individuals and groups in Australia, including the most disadvantaged, marginalised members of society who are often not wellrepresented by the rule of the majority. Australia is the only Western democratic nation that does not have a consititutional bill of rights or Charter of Human Rights / Human Rights Act. Canada, the United States and South Africa – all with similar legal traditions to Australia – have a bill of rights in their consititution. New Zealand and the United Kingdom have a Human Rights Act.
Australia's failure to act ignores what is recognised internationally as best practice of modern democracy.
“A Human Rights Act would be too costly to the Australian public and would line the pockets of wealthy lawyers by increasing litigation rather than improve outcomes for ordinary people.”
Many in the UK were concerned about this issue prior to enactment of the UK Human Rights Act 1998. However, a five-year review conducted by the UK Department of Constitutional Affairs in 2002 found that there was no significant increase in the volume, length or costs of litigation since the implementation of the Act.
A two-year review conducted by the Regulatory Institutions Network, Australian National University in 2006 found that there was no substantial increase in litigation since the ACT Human Rights Act was implemented in 2004.
“A Human Rights Act would restrict rights by limiting them to set definitions.”
• Not to define a right in most cases is not to have a right.
• It is true that Australia has been very slow to update its basic political structures in the past. A Human Rights Act recognises that this is a good thing where basic structures are concerned. By enshrining our fundamental rights and, therefore, values in an Act, we effectively make it more difficult to change fundamental laws and procedures because of political fashion, because of
widespread fear or anxiety fanned by politicians or the media for their own gain. A Human Rights Act strengthens Australians' traditional caution where changes are concerned while at the same time seeing that change, reasonable and responsible, is necessary to preserve the fundamental gains made
• In the UK, the courts do not have the power to award damages when they establish a violation of human rights has occurred. The Supreme Court does have the power to declare that a government's law or action is 'not compatible' with the Act but the parliament retains the power to decide how to respond to such a decision.
“Human Rights Act would only benefit small minorities that are seeking privileged access to protection and/or taxpayer funds from governments”.
A Human Rights Act will apply to everyone equally, whether you're in the minority or the majority. Human rights violations in Australia go beyond minorities with little or now power. It extends to the political freedoms that all Australians rely on. For example, freedom of speech restricted by the Anti-Terror Act; privacy, which is not adequately protected by the 1998 Privacy Act that at present does not even require a company to notify its customers if their most private details have been made public.
A good Human Rights Act should also name not only fundamental rights but also fundamental responsibilities. Human rights thinking states that individuals hold rights but they also must respect those same rights in others. Therefore people living together in a society have responsibilities that come with their rights entitlements. For example, paying taxes and being truthful to social security agencies are responsibilities that all have which directly affect Australia's capacity to ensure that everyone can live in a dignified way.
Those who are reliant on the government for income security do not cause the most extensive financial damage, restricting our society's capacity to ensure that everyone has a dignified human standard of living. Offenders of “white collar” crimes are responsible for draining billions of dollars from Australian consumers and taxpayers. Excessive pointing to 'bludgers' and 'dole-cheats' hides the fact that their irresponsibility does much less damage to Australian society as a whole than other, so-called “white collar” law breakers. For example, although the Australian Tax Office has not estimated the total cost of the most serious breaches, official estimates from 2003 said tax evasion cost the country $17.9 billion a year, or 2 per cent of the economy. An estimate by the Australian National
University in 2002 put the cost at $122.3 billion, or 14.1 per cent of gross domestic product. (See: http://business.smh.com.au/business/tax-office-gets-audited--and-is...be-wanting-20090520-bfta.html) Such considerable tax evasion costs and losses of tax revenue as a consequence of unpunished ‘white collar’ crime far out-weigh government expenditure on the social security costs of 'dole cheats'. We should keep a sense of perspective about what weakens and strengthens us as a nation and a society. Human Rights Act would provide protection to those who choose to break Australian laws.”
A Human Rights Act will not protect those who break the law from being punished or weaken criminal law enforcement. In fact, strengthening and clarifying an individual's rights will also identify the individual's responsibilities to adhere to the rule of law.
No new legal loop-holes: Clearly expressing our human rights does not introduce further technicalities or loop-holes into the legal system.
Human rights depend on the responsibility of everyone in society to respect one another's freedoms. As human beings we all have common human needs and desires. For example, we all seek happiness and try to avoid suffering regardless of our gender, ethnicity, race or religion.
All human beings have the right to pursue happiness and live in peace and in freedom.
The political, social, cultural and economic development of a society are obstructed by the violations of human rights. Therefore, the protection of these rights and freedoms are of immense importance both for the individuals affected and for the development of society as a whole.
J A La Nauze, The Making of the Australian Constitution (1972) at 190 M Clark, 'the People and the Constitution' in S Encel, D Horne & E Thompson, eds, Change the Rules! Towards a Democratic Constitution (1977), 9 at 18. For more information or reprinting permission please contact:
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