Rechampioning a charter's chances: a human rights act for Australia
10th Dec 2014
Wednesday 10 December marks International Human Rights Day. It is the 64th International Human Rights Day since proclaimed by the UN General Assembly in 1950 as an opportunity to bring to the attention ‘of the peoples of the world’ the Universal Declaration of Human Rights as the common standard of achievement for all peoples and all nations.
However, human rights protections in Australia are still far from adequate. International Human Rights Day provides us with an opportunity to assess where we are at and the direction in which we intend to progress.
Such assessment is particularly pertinent in the wake of the recent High Court part-ruling on the anti-freedom-of-association Qld bikie laws (Kuczborski v State of Queensland  HCA 46) and the recent majority High Court ruling in a challenge to NSW consorting laws (Tajjour v New South Wales  HCA 35). In Tajour, the majority of the High Court ruled that NSW criminal consorting laws offended the very narrow implied constitutional right of freedom of political communication. However, the High Court unanimously concluded that the provisions of international human rights treaties to which Australia is party, where not incorporated in Commonwealth legislation, impose no constraint upon the power of a State Parliament to enact contrary legislation. The High Court stated once again that there is no free standing constitutional right to freedom of association in Australia.
It is important and disturbing to note that Australia is currently the only liberal democracy that lacks a Charter of Rights in either constitutional or statutory form.
This is perplexing especially considering that there has been significant support amongst the Australian people, politicians and the judiciary for some time. Strangely, Australians still lack legally enshrined fundamental and basic human rights that Americans have enjoyed for over 200 years and much of the rest of the civilised world in the last fifty years.
In 1997, former Chief Justice Sir Anthony Mason said:
Australia's adoption of a Bill of Rights would bring Australia in from the cold, so to speak, and make directly applicable the human rights jurisprudence which has developed internationally and elsewhere… our isolation from that jurisprudence means that we do not have what is a vital component of other constitutional and legal systems…
On 10 December 1948, perhaps the most audacious, aspirational and humane document of our modern international community was adopted: the Universal Declaration of Human Rights (UDHR). Reeling from the horrors of the Holocaust and WWII, the global community was firmly fixed on a path of “never again” and by international consensus constructed an architecture of checks, balances and expectations at law to attempt to fulfil this promise to future generations.
Australia was privileged to be one among eight members of the drafting party of the UDHR by way of Colonel William Roy Hodgson. Australia had also played a prominent role in the negotiation of the UN Charter in 1945 through the enigmatic Dr HV Evatt, then former federal Attorney-General, former High Court judge and head of Australia’s delegation to the UN. In 1948 Evatt became President of the United Nations General Assembly and oversaw the adoption of the UDHR.
From that time, Australia has led the way in many progressive developments of international human rights law including:
- Australia became one of the first members of the United Nations in 1945;
- Australia was one of the 26 states that drafted the 1951 International Convention relating to the Status of Refugees at the Conference of Plenipotentiaries which met at Geneva from 2-25 July 1951;
- In 1983, Australia was one of the first countries to ratify the Convention on the Elimination of Discrimination Against Women (CEDAW);
- Australia ratified the United Nations Convention on the Rights of Persons with Disabilities on 17 July 2008, making us one of the first Western countries to do so.
However, despite our demonstrated commitment to developing international human rights law, we are certainly not leading the world now. We are doing quite the opposite especially in terms our treatment of Australia’s first peoples, and asylum seekers. In fact as has been illuminated by the UN Committee Against Torture’s recent highly concerning Concluding Observations, Australia is setting a dangerous new global precedent by actively undermining international law including empowering the executive to return asylum seekers to torture by ignoring among many basic international standards the non-derogable duty of non-refoulement and the right to be free from torture.
Devastatingly, only 60 years after the birth of a new international era of civilisation, one need look no further than our governments’ current cruel treatment of the following vulnerable groups to identify heavy dents in the fair-go psyche of Australia:
- Indigenous people (for example, Stronger Futures in the Northern Territory legislation; welfare quarantining; deaths in custody & over-representation in the criminal justice system; and fourth-world living conditions of the non-closing gap).
- Asylum seekers (for example, Operation Sovereign Borders; mandatory detention; offshore processing; deaths in custody; psychological injury, including children; and the latest frightening Orwellian dystopia introduced by the now enacted Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014).
- Women and children (for example, domestic violence, institutional abuse)
- The rule of law (for example, unfettered power provided to the executive to sacrifice civil liberties for the cost of security and surveillance, as is the case in counter-terrorism/national security and anti-freedom-of-association laws).
…The list goes on…
Of course all of this desperately begs the questions: what has happened to us as Australians (on a number of levels)? And how do we explain the incongruency of our social desire for a ‘fair-go’ posited against a simultaneous demolition of human rights and lack of legislative protections?
On the one hand, the current government champions itself as a world leader on human rights and with the other hand, it is dismantling the very rule of law that founds many legal rights protections. Given the violent violation of international human rights law brought about by the passage of the Migration Act (Caseload Legacy Bill), it is incongruous that Australia is currently positioning itself as a candidate for election to the UN Human Rights Council in 2017.
Since the establishment of the post-Holocaust civilised world and the adoption of the UDHR, the international Bill of Rights (the UDHR; International Covenant on Civil Political Rights; and the International Covenant on Social, Economic and Cultural Rights) and many other subsequent international human rights law treaties, the overwhelming flow of Westphalian waterfalls has been in the direction of nation-states legally enshrining human rights protections domestically to properly and dutifully discharge binding responsibilities under international law.
In the last century, Europe adopted a regional convention with an effective enforcement mechanism (1950); and our colonial cousin Canada enacted a statutory Bill of Rights (1960) and constitutionally entrenched Charter of Rights and Freedoms (1982). South Africa incorporated a Bill of Rights within its transitional constitution in 1993, and updated it to include further social, cultural and economic rights in 1996. Our New Zealand neighbour created a statutory Bill of Rights Act (1990) and a Human Rights Act (1993) and the UK developed a statutory human rights scheme and Human Rights Act (1998).
Many of our Pacific Island neighbours including Nauru, Fiji and Vanuatu and post-colonial nations throughout Africa have adopted the sentiment and in some cases, the direct text of the core human rights treaties into their constitutions.
But-for Australia, who has continued to actively resist this climate of positive change to protect basic international standards.
In 2012, the Hon. Chief Justice French commented:
There have been frequent criticisms of Australia's perceived exceptionalism in this respect and laments about its relegation to a backwater, while the great broad river of international human rights jurisprudence sweeps by.
Against such a background, the reticence of Australia to enshrine human rights protections into law begs the question: what is stopping us?
One simple yet compelling answer would be ‘federalism’. Another might be ‘significant misconception’.
Federalism has a lot to answer for in the derailing of progress in protecting Australian’s human rights as states jealously guard their jurisdictions from any further federal incursion regardless of how benevolent and far-sighted they may be. Meanwhile, states are continuing to legislate for the gradual deconstruction of important rights: such as freedom of association, in the face of a perceived need to be tough on crime. At the other end of the spectrum, while the ACT and Victoria have created charters of rights and responsibilities, it is clear that these instruments, while helpful, are still underutilised and untapped.
There have been numerous attempts by the Commonwealth government to introduce a federal Charter of Rights either by constitutional amendment or legislation over the last 50 years, including from the drafting of the Constitution to unsuccessful Constitutional reform referendums in 1944 and 1988 and unsuccessful legislative attempts in 1973, 1981, 1982, 1983, 1985 and 2001.
In 2008-2009, the Rudd government rolled out the audacious national human rights consultation project that elicited an unprecedented historic response of over 35,000 submissions from the electorate: 87.5% of which supported the introduction of a Bill of Rights. In 2009, the national consultation committee’s report strongly recommended the introduction of a Bill of Rights. In 2010, the federal government rejected yet another clarion call for a Bill of Rights and took the somewhat tokenistic and watered-down alternative of a ‘national human rights framework’. The main innovation of the framework was the introduction of the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth), establishing the Parliamentary Joint Committee on Human Rights, which would monitor federal bills for compliance with human rights standards.
When announcing the framework in 2010/2011, then Attorney-General Robert McClelland stated that the framework would be reviewed in 2014 with a view to implementing a constitutional or statutory Charter of Rights.
While the framework review has not yet occurred as promised, it is certainly time to question its efficacy and whether it has achieved its objects and purpose of creating “a fairer and more inclusive Australia…where everyone is entitled to respect and to a fair go and should be able to participate fully in the economic, political and social life of our nation.”
The Parliamentary Joint Committee on Human Rights (PJCHR) has fulfilled its duty very well and with perhaps surprising meticulousness and forensic assessment; on 2 December 2014 it tabled its 17th Report to the Parliament of Australia. The PJCHR has been kept very busy. Many Bills that have been proposed by successive governments in relation to our treatment of vulnerable groups (and which clearly violate our international obligations) have been red flagged by the Committee. However, its powers are limited beyond recommendation, and many Bills, including the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 have passed in vibrant violation of international law.
Clearly the framework is not working and a crucial check and balance is absent.
All of the valiant past attempts to introduce a constitutional or statutory Charter of Rights have been strangely abandoned in the face of popular support from the electorate and many of their political representatives.
The main yet misconceived criticism of introducing a Bill of Rights, are claims of “judicial activism” and “judge made laws”. However, there are a number of fundamental misconceptions in this line of argument.
Firstly, such criticism fails to acknowledge the pre-eminence of the separation of powers as an essential check and balance under the Constitution of Australia: the parliament, the executive and the judiciary. Chapter III of the Constitution legally enforces the strict separation of these powers. Parliament is charged with creating, debating and passing laws; the executive with the administration of those laws; and the judiciary with the tough tasks of interpretation and enforcement. Judges are meant to interpret laws, that is their modus operandi, their raison d'être.
If there is controversy as to how judges interpret law, even within the judiciary, there are a series of checks and balances. However, the ultimate accountability mechanism for the judiciary is the overriding doctrine of parliamentary supremacy.
Secondly, calls that a Bill of Rights will lead to judicial activism are soaked in irony. Contrary to the cries of the critics, it is in fact the lack of a bill of rights that has forced creative judicial minds to eek out implied and inferred protections of human rights from the Constitution and the common law. Not the other way around. That the common law is the rights champion of a bygone era is well felt. In 1986, then Chief Justice of the High Court of Australia, Sir Anthony Mason, stated that the common law:
….does not protect fundamental rights as comprehensively as do constitutional guarantees and conventions on human rights . . . The common law is not as invincible as it was once thought to be.
In September 1998, Chief Justice of Western Australia, the Hon. Justice David Malcolm AC, stated:
While much has been achieved through the development of the common law, the courts have had to pay a price for this in terms of criticisms that they have taken too much power to themselves. The guidance provided by a Bill of Rights would be one way of both assisting the courts as well as re-asserting the supremacy of Parliament.
Finally, the dialogue model as popularly used around the world and recommended by the National Human Rights Consultation Report in 2009, incorporates appropriate protections against judges overstepping their remit.
As stated in the National Human Rights Consultation Report 2009, a dialogue model is: “common to the human rights Acts adopted in New Zealand, the United Kingdom, Victoria and the ACT in that they aim to facilitate a ‘dialogue’ between the three arms of government—the executive, the parliament and the judiciary. The Acts set out a range of rights to be protected and then give distinct roles to each arm of government in relation to those rights. In this way the three arms of government prompt responses from each other when a proposed law or policy is inconsistent with human rights. This is often referred to as the ‘dialogue’ model.”
On 27 January 2011, Australia appeared before the UN Human Rights Council for our first Universal Periodic Review (UPR). Some 145 Recommendations were made by 53 peer states for Australia to improve its adherence to its international human rights obligations and take steps to address and prevent future violations of human rights. Eight countries made specific comment and recommendations about introducing a Human Rights Act or the equivalent thereof (Canada, Ukraine, Norway, Timor-Leste, Jordan, France, Sweden, Russian Federation). Australia blatantly rejected recommendations by the international community to introduce constitutional and/or statutory protections of basic international standards.
Australia’s second UPR is scheduled for November 2015 and no substantive steps have been taken by the government to progress the implementation of a Charter.
The relevance of such recommendations increases in emphasis when considering that Australia intends to campaign as a candidate for election to the UN Human Rights Council in 2017. DFAT have confirmed the campaign will be launched in early 2015.
It is evident that momentum is required to again drum up public support for a Bill of Rights and this time kick it over the line. A genuine national discussion must recommence. Such a discussion can only be in the national interest. Speaking about human rights will enable all Australians not only to be further informed about the inadequacy of our laws, but about the basic precepts of equality, fairness and justice that we hope to emulate, both as a legal system and as a community.
Sound the alarm for the clarion calls and the clock is ticking…
Benedict Coyne is a lawyer at Maurice Blackburn, Southport. Benedict was recently awarded the 2014 Australian Lawyers Alliance & Amnesty International Emerging Lawyer of the Year Award and the 2014 Southern Cross University Young Alumnus of the Year Award. Benedict is a national committee member of Australian Lawyers for Human Rights (ALHR) and the Coordinator of the newly established ALHR Human Rights Act Sub-Committee.
The views and opinions expressed in these articles are the authors' and do not necessarily represent the views and opinions of the Australian Lawyers Alliance (ALA).
1. Sir Anthony Mason, 'Rights Values and Legal Institutions: Reshaping Australian Institutions', (1997) 13 Australian International Law Journal at http://www.austlii.edu.au/au/journals/AUIntLawJl/1997/2.html 2. Chief Justice RS French AC, “Human Rights Protection in Australia and the United Kingdom: Contrasts and Comparisons”, Anglo-Australasian Lawyers Society and Constitutional and Administrative Law Bar Association, 5 July 2012, London 3. Sir Anthony Mason, 'The Role of A Constitutional Court in A Federation. A Comparison of the Australian and United States Experience,' (1986) 16 The Federal Law Review, 28 at p.12 cited in Australia, Advisory Committee on the Individual and Democratic Rights Under the Constitution Report, Canberra AGPS, 1987 at 13.