Australia Without A Human Rights Act or Charter? – Susan Ryan

The Honourable Susan Ryan is a strong supporter of a Charter of Rights for Australia. A Minister in the Hawke and Keating governments, her legislative contributions included the Sex Discrimination Act 1984 and the Affirmative Action Act 1986. Since then, she has worked in business and public administration, and acted as Deputy Chairman of the Australian Republican Movement. On Tuesday 4 May 2010 at The Sydney Institute she joined Dr Margaret Kelly in a discussion on a national human rights law.

AUSTRALIA WITHOUT A HUMAN RIGHTS ACT OR CHARTER?

SUSAN RYAN

This is the Australia we live in today.

We alone of all democracies have no law providing overall protection of our human rights. Neither our parliament nor the executive is accountable to the electorate via statutory checks and balances in relation to laws that violate human rights.

Australian governments over the decades have ratified the major international human rights conventions. When a commonwealth law specifically and directly flouts internationally ratified rights however, there are no checks and balances. Courts including the High Court can do nothing, as the notorious Al kateb case 2004 showed. That case established that Australia today, without a human rights act, is an Australia in which an innocent man seeking asylum can be condemned to permanent incarceration. This was the decision of the High Court in this case. It was not until 2007, six years after Al kateb, an asylum seeker born in Palestine arrived in  Australia  lacking statehood documents, was released by a decision of the then minister for immigration. Without that exercise of ministerial discretion, Al kateb might be detained to this day.

The facts of Australia’s ratification of the UN convention on Refugees and the convention on Civil and Political Rights were of no assistance. In the face of a clear provision for mandatory detention in the Immigration Act, the High Court could not effectively assert Al kateb’s human rights.

Australia is also a place where an Australian citizen can be deported, with all of her citizenship rights violated. A mentally ill permanent resident can be wrongly held in immigration detention. Indigenous Australians can live without clean water, without schools for their children and without access to health care. In commonwealth funded nursing homes, lack of care can leave old people in distress and without a shred of dignity. Disabled people can be condemned to sub standard accommodation

In Australia without a human rights act all these things have occurred and can occur again. They are instances where the commonwealth has failed the vulnerable individual. It is to give the vulnerable protection against mistreatment by the state that a human rights act is so much needed.

The cases to which I refer here and many other horrifying examples are documented in the Brennan Report on the national human rights consultation, and the public submissions to that inquiry. No one denies that these things happen, but many ask: what difference would a human rights law make?

It would not guarantee an Australia free of all abuse of rights.

A law requiring all commonwealth laws and programs to take account of statutory rights set out in a human rights act would dramatically reduce the abuses of human rights.

That is worth doing. The Rudd government has decided, at this time at least, not to do it. This decision, announced by the AG Robert McClelland at the national press club 21^st April, means other innocent al katebs could find themselves incarcerated for life.

Another woman could find herself treated like Vivienne Solon. Ms Solon, a severely ill Australian citizen was wrongly deported to the Philippines and dumped on a church run nursing home. All of her rights as a citizen were ignored by the Immigration department. And another young Indian doctor practicing in Australia could find himself, though innocent, caught up in an attempt by federal law enforcement agencies to link him with a terrorist act on the other side of the world. This young man could find his career in Australia destroyed and his family subjected to intolerable distress, as occurred in the case of Doctor Haneef.

These were high profile cases. Together with children of asylum seekers held behind barbed wire, and the less high profile but no less important cases of mistreatment of the mentally ill and the disabled, the denial of basic rights to indigenous Australians, the abuse of frail old people, these incidents inspired the strongly community based campaign for a human rights act for Australia.

With the AG’s recent announcement in response to the report from Frank Brennan SJ on the national consultation on human rights protection, the first phase of this campaign has now come to an end. Brennan recommended a commonwealth human rights act together with supporting measures such as a new parliamentary joint committee to oversee human rights, and more community education.

The Rudd Government by accepting these lesser proposals acknowledged the serious gaps in human rights protection. To that extent, Brennan and all who argued that the status quo was seriously failing many individuals were vindicated. In failing to accept the major recommendation for a human rights act however, the government has made a wrongdecision. It is wrong morally. The Brennan Report demonstrated beyond doubt that in the absence of statutory rights, vulnerable people are frequently mistreated by the commonwealth and its agents. The commonwealth has a moral obligation to rectify this situation as far as possible and use its legislative powers to protect these people.

Why did it fail them?

Presumably they failed to act because of fear of negative reactions in the electorate. While there would have been an outcry from some quarters this was in my view a wrong assessment of the electoral politics. The Brennan report represents the results of the most successful, the most democratic national consultation ever held in this country. Over 36 000 individuals made their views known to Brennan, and around another 6000 attended his forums in person. The committee held these forums in the most remote regions as well as the most populous parts of Australia. And as we are living in the 21st century, they accepted submissions by email on the government website set up for this purpose. Citing case after case of mistreatment of the vulnerable to support their views, over 87% of respondents wanted a human rights act.

Brennan commissioned independent research from Colmar Brunton. A random telephone survey of 1200 persons found: 57% in support of a law, 30% undecided and only 14% opposed. These findings reinforced research by other bodies including Amnesty, and research on community attitudes leading to the ACT Human Rights Act 2004 and the Victorian Charter of Human Rights and Responsibilities Act 2006. While other findings by Colmar Brunton suggested, Australians may feel in general secure about their own rights, the majority recognise that, for those who fall through the cracks, a new law is needed. A government accepting the recommendation for a human a rights act would have had the majority of the electorate on side.

Responding to this flawed government decision I should be clear: the campaign for a human rights act has not stopped, nor has it failed completely. While it is the case that the government will not at this stage introduce the much need law, it is also true that this campaign has had positive effects. Despite the unrelenting efforts of the Australian newspaper and some powerful, vociferous but misguided defenders of the status quo, Australians are now better informed about how rights of individuals are violated by the state. A growing number of Australians, newly informed by the consultation are actively committed to securing the reform before too many more years have passed. For example, the Australian Human Rights Group, a network of ngo’s which I chair, has grown recently to over 100 organisations, representing in turn hundreds of thousands of their members.

Then there is the broader context. The character of debate generated by the proposed human rights act has alerted many to current challenges to our social democracy. While the debate is about legal protection of rights, it is also about how far civil society has advanced and about how inclusive, compassionate and altruistic we are at this stage of the 21^st century. Among the encouraging signs is the unprecedented response by members of the public to the national consultation and the high degree of altruism on the part of those who are prepared to recognise the gap between their own favourable circumstances and those of marginalised people.

There is the downside, primarily the extent to which unfounded and irrelevant allegations succeeded in muddying the waters. New and strange alliances have emerged:  a former Labor premier aligns himself with the Australian Christian Lobby to fight against reforms aimed at assisting the powerless. At the core of the human rights act proposal is the welfare of the ill, aged, disabled and racial minorities. These concerns, most of us would understand, are also at the core of the Christian mission. For the ACL however it seems their top concerns in this context are gay marriage and abortion. The ACL is of course entitled to lobby politicians against social change that offends them. But in a social democracy these preoccupations should not be given precedence over the obligations on government to protect the vulnerable.

The negative views of the ACL on a human rights act should not be taken to indicate general church hostility. Strong public support for legal protection of human rights is on the record from the Uniting Church, the Primate of the Anglican Church, the St Vincent de Paul Society, the Sisters of Mercy, and other church based organisations who are more concerned to strengthen social justice, than to dictate social behaviour in the wider community.

The other much used argument against a human rights act is that such an act threatens judicial takeover of parliament. Though oft repeated, the fear that an ordinary act of parliament would destroy the separation of powers and hand legislative power to unelected judges is ill founded. The act of parliament as proposed could never be changed by the courts, but only by parliament. The courts would acquire only the capacity to examine the consistency between legislated rights and a particular commonwealth action. A finding of inconsistency by the High Court would lead to the matter being reconsidered by parliament. Parliament and not the court would decide whether to change the law.

In the government statement in response to Brennan, disagreement around the issue of the capacity of the court to find inconsistency was the only specific matter cited by AG McClelland as a reason not to proceed with an act. It should be noted that advice from the Commonwealth Solicitor General, included in Brennan, finds no legal obstacle in this proposed role for the court. A recent meeting of constitutional experts, including former High Court judges Mason and McHugh, and former federal court judge Branson, agreed that such a role for the high court need not pose a constitutional problem. While it is true then that some disagreement was expressed, it is overwhelmingly likely that the proposed declarations of inconsistency would be found to constitute proper exercise of federal judicial power under the constitution.

Australia today lacks a human rights act.  In its place the government will put a human rights framework, which includes parliamentary scrutiny, a new requirement for ministers introducing legislation to report on compatibility with seven core human rights conventions, a review of terrorism legislation, community education and training of the bureaucracy in human rights recognition and respect. This framework will be reviewed 2014…two elections away. I suggest that these measures will create further awareness of human rights and the commonwealth’s responsibilities to individuals. I expect that by 2014 we will have a parliament prepared to proceed with a human rights act.