Human Rights Act – Part I

Last week the boyf and I attended a public forum on the Human Right Consultation process that is being undertaken by the federal government.  The purpose of the process is to gain input from all Australians, not just the usual suspects (politicians, lawyers, etc.), by making submissions via the website above, via mail or via a community roundtable discussion.

Here is a short clip I made at the forum.

The questions that are being asked are:

  • Which human rights and responsibilities should be protected and promoted?
  • Are human rights sufficiently protected and promoted?
  • How could Australia better protect and promote human rights?

It is important to note that the government is not proposing to have a constitutional based Bill of Rights. The proposal is for a statute to be passed by federal parliament that provides a framework for the rights that should apply in Australia.

Did you know that in 1787, the newly appointed governor of New South Wales, Arthur Phillip said:

There can be no slavery in a free land and consequently no slaves.

This was 20 years before the UK passed laws against slavery, and well before the US abolished slavery with the 13th amendment to the US constitution in 1865. This is a landmark event, and we do not celebrate this fact at all.

Did you know that Australia was central to the drafting of the United Nations Declaration of Human Rights in 1948, with the Australian delegation ensuring that economic, social and cultural rights were included? Or that ‘Doc’ Evatt (who I note is from my hometown of Maitland) was the president of the UN and was formally handed the UNDHR on the 10th Dec 1948?

And so, once upon a time we were at the forefront of establishing human rights. It is now said that we are the only western country that does not have any form of human rights defined in law, whether it is by statute or by a bill of rights.

Over the next few weeks I will post up a number of threads that cover different aspects of the consultation process. I am also thinking about using the comments gathered here to compose a submission that I can on behalf of the blogocrats.

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39 Responses

  1. Joni, I like this quote:

    The future, like the past, looks likely for some time to involve more of the same: detailed laws on specifics, not the broad constitutional sweep seems to be the way congenial to most Australians. But one cannot be sure. A century ago Australians made a bold political and legal change to their way of government. Are they now summoning up the will to repeat the adventure?

    M D KIRBY

    The above from: http://www.lawfoundation.net.au/ljf/app/&id=C1B393E5B79A4C8FCA2571A900031E31

  2. Nice quote Min. I am reading Geoffrey Robertsons new book, The Statute of Liberty, which is giving me plenty of background on this issue.

    I am thinking of framing my submission around the premise that governments make law for citizens, whereas a human rights act will provide laws for a citizen (many versus the singular). And that is where the judicial system should work, and that a human rights act should properly define the boundaries of rights for individuals.

  3. I am reading Geoffrey Robertsons new book, The Statute of Liberty,

    Me too. What a great legal as well as compassionate mind has GR.

  4. Joni..my difficulty with a statute based system is that we can have the law changed at the whim of any government as we saw with the Howard government vs refugees. The judiciary then had no option but to uphold the law as enacted by parliament.

    A hypothetical is that we have in The Constitution Part V 51 (xxvi) The people of any race for whom it is deemed necessary to make special laws;

    And that’s it..no provisos about being to the person or race of people’s betterment. Just that the Federal government can make laws regarding race.

    Via common law and via acts such as state Anti-Discrimination Acts this has come to indicate ‘for the betterment’ of those people. However, that wretched 51 (xxvi) still sits there awaiting what use any future government might deem fit.

    Very interesting..your quote

    The proposal is for a statute to be passed by federal parliament that provides a framework for the rights that should apply in Australia.

    As a forerunner to a Bill of Rights me thinks.

    By gee, where to start..a statute which is a framework for rights that should apply in Australia. Well, it’s the same as what one would want in a Bill of Rights. That’s the way that I’m reading it anyway…

    To me it begins and ends with equality; race/ethnic origin, sexual orientation, family (and it’s many manifestations), opportunity.

  5. Kitty,

    And then you have those like Albrechtsen who is an opinion writer and who challenges one of the great jurists that Australia has produced. Her column this week (IMHO) chose to distort and twist his words to fit her own view of the world.

    She keeps on the theme that a charter will transfer rights to the judiciary – ignoring all the evidence that the book provides.

  6. Oh – so true Min, about the charter being a forerunner to a Bill of Rights. Just the Canadians who had a charter in 1960, that was the brought into their constitution in 1982.

    Getting a referendum passed in this country is hard enough. But if we start with a charter then moving to a constitutional change after a period of time would be easier.

  7. Only for you joni and Kitty did I manage 1/2 way through Albrechtsen’s column (I’ll read the rest after going walkies).

    Delegating power to courts to settle the finer details of human rights set down in broadly sweeping platitudes makes no more sense than (her examples the Australian cricket team or the Royal College of Surgeons)

    Where the heck does Janet think that human rights issues are settled now? Off in the trees with the monkeys?? (with due respect to chimpanzees). Nooo, it’s called the Human Rights and Anti-Discrimination Commission and the states’ Anti-Discrimination Commissions.

  8. I know – I imagine there is a well worn kitchen path after trying to read her column.

  9. Joni..I can’t find anything else about Albrechtsen’s column to talk about..the rest is just twaddle about drug-dealing bikies swarming from NSW into Vic..

    If, as the Victorian Police Association fears, drug-dealing bikies swarm across the border into Victoria to set up shop in Prahran instead of Petersham,

    Added to:

    Take the anti-bikie laws that apply in South Australia and are soon to come into force in NSW. Civil libertarians claim these laws are egregious breaches of the right to freedom of association found in the Victorian and ACT charters of rights.

    Umm, so why are the drug-dealing bikies travelling from Petersham to Prahan??? Cos they’re allowed to associate, cos of a charter of rights?? One can sort of imagine this swarm happening..sorta.

    Quite right joni..just about wore the lino out on this one 😉

  10. Did you see in my youtube clip the bit about the blind and not being able to have a secret ballot and how the federal government wants to stop the trial because of financial reasons?

    The Electoral Matters Committee says:

    “[T]he Electoral Matters Committee says it is too expensive to continue with the trial.”

    Disgusting. And Janet wonders why we need a charter of rights?

  11. Yes..agreed of course. It takes so long for disabled people to gain equal rights and we have the technology and to have it taken away…

    Try a 3 year HREOC case just to allow an 11 year old boy (not my son) to be allowed to wear a hat in class due to scotopic sensitivity syndrome and to be allowed to record class lessons. Education Department fought tooth and nail. We lost, the parents moved to Qld.

  12. The book on page 98 details the case of a autistic child who was refused special education services in Victoria because autism was not classed as a disability. It was the Victorian charter that allowed that decision to be overturned, and for the child to receive the extra funding.

    At the forum one of the speakers detailed how she was a “person with a disability” not a “disabled person”. A very important point. A charter of rights does not bring extra rights to those who face discrimination, it’s purpose is to remove discrimination.

  13. And as a fond farewell to Janet Albrechtsen:

    Only a brave government will ignore such a judicial sanction about some lofty “human right”. Meanwhile the big blokes in leather will thank their lawyers – and the present crop of charter crusaders – for their right to freedom of association.

    A win for human rights is a win for bikies???

    And in my alternative reality….

  14. A major part of the concept of democracy is freedom…as a citizen you are permitted to do and say what you want within a democratic society – providing there is no Law(s) that say(s) you can’t…(Statute, or established under Common Law)

    Billsof Rights are aimed at authoritarian societies (who wouldn’t touch ’em with a proverbial, anyway…)

    A major agument against a Bill of Rights is that it runs the risk of being too “narrow”…particularly in the future…and actually limiting the “rights” the majority of us already “enjoy”…and “majority rule” is also a cornerstone concept of democracy…

    As an example (analogy?) our Constitution was framed at the turn of the last century and badly needs revisiting…(recomposing) …for the 21st Century.

    As another example, OH&S Laws that “spell out” compliance, (eg you must do this), are often legally “circumvented” because of the prescriptive approach…ie this is all we need to do…

    …in other words – the Bill of Rights approach…another, and more successful approach is…

    … OH&S Laws that are simple and demand a duty of care from all players, coupled with risk assessment, mean they are much broader in scope for all parties – giving a wider range…ie we need to assess across the organisation…it allows freedom to suit the laws to that particular workplace and circumstances…

    …ie a democratic freedom approach…

    Before you all rush in – I am not well versed in this subject – as everyone above seems to be – just expressing an opinion that may be contraire…and perhaps, more main stream (?) in Oz….

  15. That’s right joni..some things are not classified by various education departments as a disability but as ‘conditions’ or ‘deficits’ and therefore one has to go through hell and high water to obtain assistance.

    And even then one might end up with assistance that is completely unsuitable. For example, one young bloke could have gone ahead in leaps and bounds..above average intelligence but needed a laptop and typing lessons (he couldn’t write due to a deficit [which compares with a disability]. Ans: Refused. Instead he was awarded a teacher’s aide to sit beside him during lessons..Wow, wasn’t that helpful! The poor kid used to run a mile/likewise poor teachers’ aide. It was of course all to do with funding..one could receive funding for a teachers’ aide but not funding for a laptop and typing lessons.

  16. TB..I think that you’ve said it in a nutshell. Any Bill of Rights should be akin to OH&S laws. As you say

    simple and demand a duty of care from all players..

  17. TB

    I actually really want the contrary view, so that I can search my arguments, so that they can stand up to criticism.

  18. joni, a reason I posted – I am aware of your passion…

    …at this stage I’m not and suspect I may represent the “silent” majority…

    …the examples above of individual “HR abuse” are really beaurocracy gone silly and I doubt a Bill of Rights will improve their IQ or compassion…

  19. From Wik:

    A bill of rights is a list or summary of rights that are considered important and essential by a nation. The purpose of these bills is to protect those rights against infringement by the government. The term “bill of rights” originates from Britain, where it referred to a bill that was passed by Parliament in 1689. An entrenched bill of rights exists as a separate instrument that falls outside of the normal jurisdiction of a country’s legislative body.

    And from there reference in America’s Declaration of Independence, We hold these truths to be self evident…

    Australians have ‘self evident truths’ as part of our culture but not as part our governing systems.

  20. TB,

    Understood and much appreciated.

  21. I suspect that our Constitution is remiss because at the time of the writing of our Constitution there was never envisaged a time where we Australia would be separate from mother England..hence no need for a Bill of Rights.

  22. Australians have ’self evident truths’ as part of our culture but not as part our governing systems.

    Min its also part of our democratic freedoms

    …and very robust (Common Law) judicial system…that seems to answer most of the “day to day” HR issues that pop up…

    …as for the British Bill of Rights in 1689, this was just 50 years after Cromwell died and a new monarchy was to take the throne – most monarchies in British history (until then) had been autocratic by nature and deed – the Lord Protector, Cromwell (a most revered man – not!) was worse! The population (and a shifty parliament) needed a Bof R…at that time…

    …quite unlike modern Australia…

  23. And remember that our constitution is actually part of the UK’s Commonwealth of Australia Constitution Act 1900.

    Our constitution was framed by those who “warned of the danger of ending racial discrimintaion” (page 59), and those who had “great feeling” against “coloured peoples” (page 59).

    And so our forefathers deliberately omitted human rights from our constitution to keep discrimination in our laws.

  24. …as I implied, joni, fix the Constitution first…methinks there is cart before the horse afoot here…

  25. TB..my difficulty is that any government given the numbers can enact any law..example is of course WorkChoices with one party having control of both Houses of Parliament.

    The leader of this same goverment is then able to to stack the High Court with his/her own appointees. Howard did it with his own conservative appointees and Rudd likewise will alter the timbre of the High Court with his appointees.

    No longer having appeal to the Privy Council in England this is Australia’s highest court of appeal..and it’s justices are appointed by the Prime Minister.

    We are certainly a robust common law country, but there are difficulties when the judiciary in our highest court of appeal are government appointees.

    http://www.gtcentre.unsw.edu.au/news/docs/Chief_Justice.pdf

  26. Min, the cynic in me knows that there is no such thing as a perfect system…

    …my life and work experience, education and training tell me that making systems complex stops them working efficiently (or not all)…

    …firm believer in the KISS principal …

    …I wish we could do to the British Monarchy what we did to the Privy Council…

  27. TB

    The problem with changes to the constitution are that they are so hard to change – which is why I like the proposal to have a statute that we can later incorporate into the constitution.

  28. TB..it’s such a hotch potch at present that I am hopeful that at least if we can agree to a statute that it will clarify things (well hopefully). An example is: we have HREOC (Human Rights and Equal Opportunity Commission) and then interlocked are all the individual state’s Anti-Discrimination Commissions.

    To me anything that helps sorts out this hotch potch is a goer in my opinion.

  29. joni, we need a Republic and a completely rewritten Constitution (may satisfy your needs re a Bof HR?)

    Min, no matter what – you will need “commissions” to administer any statute (why a statute?) its a Bof HR?

    Should be isolated from judiciary, I thought? (…and Parliament…pretty hard)

    Gotta go, enjoyed the natter (still on this bloody laptop)…The Minister calls…(ah! Rumpole, “she who must be obeyed…”

    BTW, Min, curried sausages (left overs from EEH) must recycle everything these days – no h/outs for SFR’s – wonder if that should be included in your BofR’s …mmmm

  30. A Constitutional Bill of Rights would have put a stop to the chicanery Howard got up-to with Refugees by excising bits of the country (like Christmas Island) from the rest, so that the same laws and treaty obligations did not apply there.

    This was done via Legislation/Regulation which would have been unconstitutional if the Bill of Ruights had existed at the time as part of the Constitution.

    That’s the problem with mere Legislative Charters of Rights. The next arsehole with the numbers on the floor of Parliament can simply change them to suit his own whims or those of the mob.

    If the relevant rights are written into the Constitution, it becomes a whole new ball game.

    This is undoubtedly the beef that people like Albrecthsen have with a Constitutional Bill of Rigts: It limits mob rule and makes it so much harder to victimise whoever the perceived “enemy” of the day happens to be. Under Howard that enemy was swarthy reffos. These days its hairy bikies. Who knows who it will be next year.

  31. TB Queensland, on April 13th, 2009 at 5:47 pm Said:
    joni, we need a Republic and a completely rewritten Constitution (may satisfy your needs re a Bof HR?)

    By gee TB you’re scary to disagree with. YAY for a Republic! Have you read our Constitution? A more boring load of YAWN you have never read in your life..it’s about equivalent to reading a life insurance policy.

    Likewise recycles tonight TB. Had a couple of homemade schnitzels left over which have been transformed with the help of ham and swiss cheese into veal cordon bleu.

  32. Evan..it could indeed be Yorkshiremen eating curried sausages.

  33. And recent: http://news.theage.com.au/breaking-news-world/china-releases-human-rights-action-plan-20090413-a4p6.html

    What China will do about this is an unknown factor, yet still a step in the right direction viz acknowledgment that there is such a thing as human rights.

  34. Min, on April 13th, 2009 at 6:39 pm Said:

    acknowledgment that there is such a thing as human rights

    is such a thing as human rights Really? Or are you confusing the ‘is’ and the ‘ought’?

    Human rights is an abstract concept like ‘democracy’, ‘justice’ and ‘education’ to name but three. Human rights as a concept has no concrete or material existence like cats, dogs, cars.or whatever.

    While one may argue that people ought to have ‘rights’ (and I do), let’s not kid ourselves that they ‘exist’ or are somehow ‘natural’ and therefore separate, above or divorced from existing social, economic, historical, etc power relationships because they’re not.

    The concept of human rights is a product of our history, broadly defined.

  35. Australians have ’self evident truths’ as part of our culture but not as part our governing systems.

    What kind of self evident truths? And how do they differ from other cultures? A ‘culture’ should not determine individual human rights, they should be available to all human beings regardless of culture, colour, religion etc.

    Are these ‘self evident truths’ inalienable and inviolate rights or does the truth depend upon the whim of each government?

    A major agument against a Bill of Rights is that it runs the risk of being too “narrow”…particularly in the future…and actually limiting the “rights” the majority of us already “enjoy”…and “majority rule” is also a cornerstone concept of democracy…

    In a true democracy, majority rule is tempered by the equal protection of the rights of a minority within that democracy. One group should not be allowed to dominate and oppress another – the rights are individual rights, which all humans should possess equally.

    The rights we enjoy are at the behest of each successive government. I prefer my rights to be entrenched and inviolate, so that they cannot be taken away, abused or limited at the whim of the government of the day.

  36. Yep, kitty, but who will have the final say as to which rights will be included and which will not? I think even determining what is a “right” to be debated will be a huge (not insurmountable) problem.

    However, that doesn’t mean we shouldn’t give it a red hot go. In fact, it could be a very interesting thread with everyone putting in their two bob’s worth.

  37. kittylitter, on April 13th, 2009 at 11:54 pm

    Egads, you are adding nuance to the banner of ‘democracy’. How would that apply to the supranational situation? Eg, would there be a place in the kind of ‘democracy’ of which you speak for a people to choose something other than democracy as a model for themselves, or for there to be a variety of interpretations as to what constitutes what I shall call a ‘human norm’ rather than a ‘human right’ in their chosen system of governance?

  38. …would there be a place in the kind of ‘democracy’ of which you speak for a people to choose something other than democracy as a model for themselves,

    We wouldn’t be choosing another political system legion, all we’d be deciding would be the individual human rights and freedoms of all Australians within our present system. Whether we would go so far as to include social and economic rights would be a further debate I think.

    What would your preferred political system be BTW?

  39. kittylitter, on April 14th, 2009 at 7:40 pm

    More an extended musing on the nature of the rights (and their shadows, obligations) and norms proposed…you seemed to be advocating them as an a priori universal, independent of a culture (perhaps analogous to a modern off-shoot of Natural Law) while at the same time suggesting that those rights were positive ones, creatures of and existing within a culture capable of recognising them, and within a given governmental and socio-political milieu. I guess, at a certain level, I was wondering how that worked at different scales; in addition to a new query relating to how changing the particulars of a given social contract won’t necessarily change the operation of the system of governance.

    My preferred system? One that works or, at least, doesn’t not work; and acknowledging that there are a variety of those, each with their virtues and flaws, both in theory and practice. I tend, however, to suspect the accuracy of Michel’s Iron Law of Oligarchy, which says that it doesn’t matter what a system starts out as or claims it is facially, an oligarchy is what it becomes and how it functions…so, whatever kind of governance is claimed, people should be aware of that in their dealings.

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