Human Rights Safe in Australia - Whose Rights?

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HUMAN RIGHTS SAFE IN AUSTRALIA – WHOSE RIGHTS

“A bill of rights is what the people are entitled to against every government on earth, general or particular, and what no just government should refuse, or rest on inferences”

I        INTRODUCTION

Australia is somewhat a strange and nonsensical oddity in the world today.   As a nation that has championed the cause of fundamental human rights, and was one of the original drafters of the Universal Declaration of Human Rights, it has consistently failed to equally guarantee the protection of those very same rights for its own people.

Despite being a signatory to all human rights treaties, Australia stands today as the only western democracy in the world without a Bill of Rights, a failing that has permitted repeated breaches of fundamental freedoms committed under the ‘lawful’ authority of government policy and legislation.

This paper will briefly outline the case for an Australian Bill of Rights and echoes the


call of many people who recognize the current system is vastly inadequate.

II        WHO NEEDS PROTECTING?

Rights protection for white, upper-middle class male conservatives has generally been assured throughout Anglo-Australian history, because they have almost exclusively occupied the strongest positions of political, legal and social power; including the drafting and judicial oversight of the Australian Constitution and all other legislation.

In contrast, people outside this group, including Indigenous Australians, women, homosexuals, young people, religious minorities and those from non-English speaking backgrounds, are vastly unrepresented in such positions and are most at risk from rights abuses.   Ultimately, there is no true protection of fundamental freedoms unless it is firmly grounded in equity.

III        THE ARGUMENTS AGAINST A BILL OF RIGHTS – POLITICAL MYTHS

3.1        Parliamentary Protection?

Democratic representation is a poor conduit for the protection of individual rights, clearly demonstrated during almost 12 years of the neo-conservative Howard

government.   His leadership dominated the party at all levels and effectively nullified any alternate views, ensuring an almost dictatorial form of government, far detached from democratic representation.   This failure is further compounded by the infrequent sittings of elected representatives, orchestrated parliamentary debates, and a focus on political issues largely irrelevant to the general public.

It was this ‘unrepresentative’ parliament that introduced a breadth of legislation that directly undermined the rights of vulnerable people during the Howard era and truly defined this ‘protection’ as a myth.

3.2        Constitutional Protection?

Whilst the Constitution does contain expressed rights relating to voting, trial by jury, acquisition of property, freedom of religion, and discrimination on the basis of state residence, they offer only limited protection.


The right to vote was transitional and is now redundant, effectively permitting legislation that could exclude voting rights for people from different social, cultural or racial groups.   The right to trial by jury for indictable charges is not applicable to state laws, and can be avoided for Commonwealth laws by classifying offences as summary instead of indictable.   With the exception of interstate trade, and possibly religion (although even this is uncertain), other rights can be largely negated through the plenary legislative power of state governments which is not bound by constitutional restrictions.

Some implied rights have in part been recognized by the High Court, including freedom of political communication, movement and association.   However, these rights have been largely undermined by a return to a legalistic approach to constitutional interpretation, as was demonstrated in the Stolen Generations case.   In reality the Constitution offers no real protection for individual rights.


3.3        Common Law & Judicial Protection?

Whilst the common law does exist to provide some protection to individual rights, all can be largely negated by legislation that expresses a clear intention to do so.

Increasingly the High Court has been called to determine matters involving breaches of human rights carried out under the legislative authority of parliament.   However, it has shown a reluctance to constrain the power of parliament deeming such interpretation to be beyond its judicial role.   This has been further compounded by significant increases in government interference with judicial processes on either ideological grounds or simply in an attempt to secure popularist support.

Interestingly, a number of High Court judges are among the loudest advocates in favour of a Bill of Rights.


IV        THE ARGUMENT FOR A BILL OF RIGHTS

4.1        Why An Argument?

The first argument in favour of a Bill of Rights begins with the question:  why does something that would guarantee fundamental rights need to be justified at all?   As a free people we should not have to justify demanding an assurance for individual freedoms because they are rights not privileges.   In the absence of concrete guarantees the government faces few constraints in the exercise of its power, a fact demonstrated by the following High Court cases.

4.2        Indigenous Australians & Rights

Indigenous Australians have been subjected to repeated breaches of fundamental human rights since the dawn of the First Fleet through to modern times.   The existing form of government through policy and legislation authorized many of those crimes against humanity, which saw true effect through the Stolen Generations.   The litany of wrongs inflicted upon Indigenous Australians is in itself sufficient evidence to support a Bill of Rights.


The Stolen Generations case in 1997 not only shattered the hopes of the plaintiffs, and the illusion of implied rights under the Constitution, but also laid the foundation for the federal government to pass racist legislation without constraint.   In the same year of the Stolen Generations case, legislation was enacted to override Ngarrindjeri cultural and spiritual beliefs in favour of building bridge access to a marina/housing development.   The unsuccessful High Court challenge by the Ngarrindjeri elders confirmed the government’s power and willingness to pass racist legislation on the basis of commercial and political gain.

This was again realised for the Northern Territory National Emergency Response Act 2007 (Cth) that authorised measures reportedly with the intention of combating child abuse, but suspiciously also encompassed welfare provisions, compulsory land acquisition and permits.   Operation of the Racial Discrimination Act was specifically excluded, demonstrating the impunity of any non-entrenched legislative ‘protections’.


V        THE ERA OF TERROR – WHO SHOULD WE FEAR?

5.1        Security and Social Control.

The past 12 years has seen a raft of new laws and legislative amendments which have provided vast new powers to police and other government officials to override fundamental freedoms in the name of ‘security’.   The use of these new laws has resulted in a number of individual freedoms being compromised, with some victims unsuccessfully seeking protection and remedy from the High Court.

5.2        Justice Politically Redefined – The cases of Fardon, and Baker.

Robert Fardon was a convicted criminal and was serving a 14 year gaol sentence for sex related offences in a Queensland prison.   His pending release caused state government concern that he would reoffend upon release and as a consequence the Dangerous Prisoners bill was passed by parliament.   The new law conferred power on the Queensland Supreme Court to continue a prisoners custody if it was deemed necessary to protect the community.   Mr Fardon was denied release under these terms and challenged the decision in the High Court.

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Mr Fardon invoked the Kable Principle, claiming the decision making process for his continued detention was ‘[r]epugnant to the Court's institutional integrity, and being a

court of federal jurisdiction, it therefore brought it into conflict with Chapter III of the Constitution.

The High Court rejected this argument, Kirby J dissenting, on the basis it was within the power of the judiciary to exercise a non-punitive power of detention duly conferred by the legislature.   A similar decision was reached in Baker v The Queen, which also rejected the application of the Kable Principle, confirming that judicial power to deprive liberty conferred by the legislature extended beyond standard ...

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