Some people argue that human rights are well protected in Australia. These arguments were presented on ABC Radio's Big Ideas. Reasons for this include the integrity of the judiciary, the protection provided by the common law, and the bicameral system combined with proportional representation. Beyond these reasons, we cede to Parliament the duty to protect human rights. Other arguments are that a bill of rights politicizes the judicial system. There are unintended consequences, for example, on the military. There is a problem with language that rights petrify absolutes. Finally there is a contention that there is a rights protecting culture in Australia.
Former Prime Minister Robert Menzies argued for the superiority of the common law over the Roman System of arguing the law from general principles that underlies some of the argument against codification into a bill of rights. He suggested:
The draftsmen of the Code Napoleon were intellectually at the poles from the creators of the English Common Law…our intellectual tradition is inductive – trial, error, trial, success, a precedent – so that we sometimes appear to the onlooker to have no principles; while deductive minds elsewhere sometimes seem to us to be so occupied by pure syllogisms that common sense and human values seem to disappear.”
You have to wonder whether the judicial process is really all that different, or to how often the Common Law judges distinguish the individual case and whether the "Roman Law" judges do not do the same. As far as I know Robert Menzies had no experience, for example, of Scottish law. The argument is repeated by those who oppose a codification of the civil, political and other rights, ignoring that Australia is signatory, in part, if not in whole, to the Universal Declaration of Rights (1948) and the 1966 International Covenant on Civil and Political Rights, and the International Covenant on Economic, Social and Cultural Rights. There are other agreements to which Australia has ratified with the expectation that the accepted principles be incorporated into Australian Law sometimes at both Federal and State levels. Somebody should tell the opponents to rights legislation, the horse is no longer in the barn.
The criticism is that as in the United States, with the Sotomayor nomination in mind, that a Bill of Rights politicizes the judiciary. Firstly, Judge Sonia Sotomayor has already been appointed an federal appeals court judge by the Senate. Just because judges to the Australian High Court are selected by the Cabinet it does not mean their appointment, or non selection is not political. It just means that it is not a public process, which I agree can make it unedifying as in the current situation, but against that if the US Senate Judicial Committee does it job properly then an appropriate appointment can be made.
The fact that Judge Sotomayor's gender and background are an issue suggest that she is exceptional. Law students tend to be drawn from the sociological (as distinct from the economically defined) middle class, and judges (I suspect) from barristers. I am told that judges have integrity and I hope it is true, but I am not sure what the mechanism is that maintains the standard.
The Australian Constitution mostly did not provide give expression to rights. There is a section providing for freedom of religion, which reflects colonial experince since the settlement was, unlike the United States, not framed by religious exile and there was no religious denomination with a majority in any colony. There is some protection of the right to vote, but compulsory voting and proportional representation for the Senate from 1948 are both statutory provisions. The right to vote does not extend to local governments, and until 1967 not to Aboriginal people. There is a right to jury trial for some offenses. Then there is the example of High Court-made law, which is all over the important sections of the Constitution, with an implied right of political communication.
Now Robert Menzies had a particular view of the absence of a Bill of Rights in the Constitution:
“I am glad that the draftsmen of the Australian Constitution, though they gave close and learned study to the American Constitution and its amendments made little or no attempt to define individual liberties. They knew that, with legal definition, words can become more important than ideas. They knew that to define human rights is either to limit them – for in the long run words must be given some meaning – or to express them so broadly that the discipline which is inherent in all government and ordered society becomes impossible. As I understand it, the Australian draftsmen had good reasons for not following the American model…
In short, responsible government in a democracy is regarded by us as the ultimate guarantee of justice and individual rights. Except for our inheritance of British institutions and the principles of the Common Law, we have not felt the need of hidden formality and definition. I would say, without hesitation, that the rights of individuals in Australia are as adequately protected as they are in any other country in the world.
In America, if I may say so as a most friendly observer, there is a long history of hidden distrust of ‘official’ people. As they are not directly answerable in Congress, where hidden; they do not sit, and in whose proceedings they are ‘outsiders’, it has been thought necessary to impose constitutional limits upon them, with the Supreme Court as the interpreter of those limits. And as the interpretation of such provisions will be largely affected by political and social concepts, the judgments of the Supreme Court of the United States tend to possess a political flavour which is notably absent from the judgments of the High Court of Australia.”
People in Austraila probably know through television programs more about the American Bill of Rights, amendments to the Constitution. We imagine we have similar rights here. Still the wording of the amendments allows the opportunity for abuses, especially with respect to the presidential powers in war time.Now the fashion, following the Bush Administration, is to create hysteria around terrorism, and thus begin the descent into a transformation of a democratic system to fascist one, following the well established steps identified by Naomi Wolfe. Glenn Greenwald writes suggesting that not all is roses in the garden of the land of the free, and the home of the brave :
I hope to write more about this with time permitting, but this decision - by Bush 43-appointed federal Judge Jeffrey White from Friday - refusing to dismiss a lawsuit brought by Jose Padilla against John Yoo, which alleges that Yoo violated numerous constitutional rights of Padilla's by virtue of his torture and other memos - is both extremely significant and very well-reasoned. Ironically, the Obama DOJ, in representing Yoo, raised many of Yoo's defining legal theories in order to argue for dismissal of the lawsuit (see p. 22: the Executive is vested with war-related power and the judiciary has no role to play in such matters; judges should defer to the President; what was done to Padilla is too secret to allow judicial review, etc.). It was those Yooian theories that were resoundingly rejected by Judge White, who held that the brutal, inhumane treatment to which Padilla alleges he was subjected plainly constitutes serious violations of his Constitutional rights and that Yoo's memos can be shown to be responsible for those violations.
Judge White's systematic rejection of the arguments once made by the Bush DOJ -- and now made by the Obama DOJ -- to prevent courts from adjudicating the legality of presidential actions was prefaced with this citation to the Federalist Papers:[War] will compel nations the most attached to liberty to resort for repose and security to institutions which have a tendency to destroy their civil and political rights. To be safe, they at length become willing to become less free.
(The Federalist no. 8 at 44 - Alexander Hamilton.)
It is reasonable to say that complacency that arises from being a lucky country, in that other the Aboriginal wars waged against with few exceptions mostly against small groups of people, who could be overcome by disease and superior weapons there has never been a civil war in Australia. Declarations of human rights typically follow wars. This was true of Magna Carta (written in Latin), the 1699 Bill of Rights, the Declaration of the Rights of the Man and the Citizen, following the French Revolution, as it was of the US Bill of Rights as amendments to the US Constitution. In Australia the quality controls of the legal system were set up externally beginning with the Bigge Commission. Appeals to the Privy Council in London were effectively ended in 1986, although the change had progressively taken effect over a period of almost twenty years.
What Menzies and others current opponents of the legislative rights protection, consistently fail to notice is that Parliament can over-ride the Common Law. George Williams, makes the case for a Charter of Rights and Responsibilites, much like the Victorian Model for the Federal Parliament:
If Parliament wanted to make a law that infringed human rights, it could still do so but only by confronting the issue head-on and involving real deliberation and more media and public scrutiny. Parliament needs reform when it comes to human rights. The record speaks for itself. Recent federal laws have restricted freedom of speech under new sedition offences, twice suspended the Racial Discrimination Act to allow such discrimination in native title and the Northern Territory intervention, and detained children in immigration detention for years at a time so that many have become mentally ill.
The problem is partly one of inadequate processes. The enormous volume of laws made each year by Parliament means they may receive little or no scrutiny. The day is now long past when parliamentarians could read, let alone debate, all of the laws they make. This produces a poor result for human rights due either to oversight or manipulation of procedures to avoid scrutiny.
Even laws with a big effect on our freedoms can be rushed through with minimal debate, leaving the media and the public oblivious as to the outcome. For example, the complex package of legislation for the Northern Territory intervention required robust debate to get the balance right. Instead, the 480 pages of the law were seen for the first time when introduced into House of Representatives on the morning of August 7, 2007. It was passed later that day, with the key debate on the suspension of the Racial Discrimination Act running for only 13 minutes. The Senate did only a little better.
When it comes to human rights reform, Parliament, and not the courts, must lead. The goal must be to prevent the violation of human rights, and not merely to provide remedies for their breach. This means putting in place processes and protections that ensure that laws and policies respect human rights when they are first made by parliaments and governments.
To make the greatest difference, the focus must be on day-to-day government services. Many human rights problems affect Australians at vulnerable points in their life when they come to depend on government-delivered or funded services in essential areas such as aged care, child protection and mental health.
While our system generally works well, it can still allow the mistreatment of people in ways that are unjust and infringe the dignity, respect and freedom to which everyone is entitled.
On reflection we might now consider our record on human rights to be not as good as it seems. Those who have suffered loss of rights and human dignity do so often because of power imbalances, and when their experience is brought to the light of day, as in the case of the Stolen Generations, their plight is met with denial and inaction.
I agree that a social and political culture that believes in the the fair go for everybody, that can resist and repudiate scapegoating, is as important as federal and state laws to protect human rights. The simple proposition is that in order to protect your rights you need first to know with clarity what they are. As others have suggested these rights should be those accepted by the international conventions that have been signed. Should the need arise to balance such rights against wider social concerns then there should be sunset clauses.
So how did I come to consider this subject at this level of detail? Last Thursday a small group of us met to discuss how best human rights could be protected in Australia. I tend was given the task of writing the report of our findings for the National Human Rights Consultation Committee. So I spent last weekend, ignoring my other duties around the house, tangling with Work, writing up the group submission. Our group followed the advice of Geoffrey Robertson and George Williams, because when we considered our stories related to rights we found in those case they were not well defined or protected.
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