Australia Needs A Charter Of Rights

By Julian W K Burnside AO QC In Australias legal system, if a right is not recognised by law and enforceable by the courts, then it is not a right at all: it is just a good idea. That is a prime reason for requiring the Commonwealth Parliament to adopt a charter of human rights. Many people speak of human rights as if those rights are protected by Australian law, but they are not. We speak of the right to life and the right to privacy; we think we have a right not to be arbitrarily deprived of our liberty and a right not to be subjected to cruel inhuman or degrading treatment, but these are not rights recognised by Australian law. The Brennan Committee report in late 2009 re-ignited the debate about whether or not human rights are protected adequately in Australia. Curiously, the debate is not about whether human rights are important: that is generally agreed. The sort of rights in question are, generally speaking, the civil and political rights identified in the Universal Declaration of Human Rights (1948), freedom from arbitrary detention, freedom from torture, freedom of thought and belief, equality before the law and so on. The question is whether we should protect them by law. Opponents of a charter of human rights seem to overlook the fact that these important rights do not exist if we do not protect them. Some opponents of a Bill of Rights are really criticizing the US Bill of Rights, which dates from 1789, but no-one is advocating a US-style Bill of Rights for Australia. The ACT and Victoria have both introduced statutory protection of human rights. The debate now is whether we need a federal charter of human rights along the same lines. There is a standard range of arguments put up against adoption of a charter of rights. The main ones are that our rights are adequately protected already; that it is antidemocratic because it would transfer power from parliament to judges; that they do not work, and that having a charter of rights would be a lawyers feast. But the arguments are wrong.

3. Which country is identified as having a Bill of Rights? Can you think of another country that has one?

Are Our Rights Protected?

Australia is a pretty good country. Generally our parliaments make laws which most of us recognize as good and justifiable. But sometimes, parliaments make laws which, although terrible, are constitutionally valid. How should we respond to such laws? One answer is that in a democratic system the government would be thrown out at the next election. That sounds okay, but is not much comfort for those who suffer under the law in the meantime. And even that democratic correction may not be enough: if the law operates harshly on an unpopular minority, the majority may prefer to return the government to power. It is important to remember that German laws, which progressively discriminated against Jews and ultimately resulted in the Holocaust, were constitutionally valid laws, and the government which introduced them was left in power even though the majority of voters knew what was going on. When society turns against an unpopular minority, democratic rule can start to look like mob rule. A charter of rights makes it more difficult for parliament to make laws which are unjust, or which offend basic values. Parliament can still do so if it wants, but it must say plainly that it is intending to infringe fundamental human rights. It is easy to imagine that governments in Australia would not behave so badly, but it is important to remember some of the things which have happened in Australia in recent times. Along with much of the western world, Australia introduced harsh measures to deal with the risk of terrorism after the attack on America on 11 September 2001; the bombing in Bali on 12 October 2002; the train bombing in Madrid on 11 March 2004 and the bombing in London on 7 July 2005. Dreadful though these events were, they were not unprecedented. The 20th century is littered with examples of terrorist events, including bombings and other attacks in Britain by the IRA, numerous attacks and assassinations in continental Europe by the Red Brigade, the Baader-Meinhoff gang and the murder of Israeli sportsmen and women at the Munich Olympic Games in 1972.

Questions 1. Which International declaration identifies Human Rights? 2. Why does the author consider it important to protect human rights at a commonwealth level?

After September 11, America established a prison at Guantanamo Bay in Cuba, where it took people suspected of involvement in terrorist offences. They were held there for years without trial; without even being charged. They were held in terrible conditions and were subjected to lengthy interrogations and torture. Interrogation in stress positions included the practice of short-shackling. This involved the prisoners hands and feet being shackled in such a way that the prisoner is forced to crouch or kneel, and cannot move without the shackles cutting into the wrists and ankles. Toilet breaks were not allowed during these lengthy interrogations, with obvious results. Prisoners in Guantanamo were subjected to waterboarding: a technique in which the prisoner is strapped to a board, his face wrapped in cloth, and water is poured onto the cloth continuously. With every breath, the victim takes in water until he begins to drown. He is then resuscitated. Detainees in Guantanamo Bay included two Australian citizens, Mamdouh Habib and David Hicks. Although the brutality of Guantanamo Bay was well known, there was no public outcry about the fact that our ally, the United States of America, was holding two of our citizens without trial and subjecting them to torture, and the Australian government did nothing to help them. Exploiting the climate of fear that made Guantanamo Bay thinkable, the Australian government introduced a number of security measures which seriously interfere with fundamental liberties. In 2002, the ASIO legislation was amended to permit the incommunicado detention, for a week at a time, of people not suspected of any wrongdoing: it is enough if they are thought to have information about others who may be involved in past or potential terrorist offences. The person may be taken into isolated custody, and will not have a free choice of legal help; they will not be permitted to tell friends or family where they are; they must answer questions, or face five years imprisonment. Dr Mohammed Haneef was held for several weeks this way. The public were unconcerned about it until it turned out that he was completely innocent. That is one of the difficulties with protecting human rights: if you say someone is a terrorist or a paedophile it is easy to get away with mistreating him or her; but it looks very different if you remember the presumption of innocence. In 2005, the Commonwealth Criminal Code was amended to authorize control orders and preventative detention orders. A control order can include an order confining a person to a single address for up to 12 months, without access to telephone or the internet. When the subject of the control order is served with the order, they are to be given a summary of the grounds on which the order was made, but not the evidence. A preventative detention order will result in a person being jailed for up to 14 days in circumstances where they have not been charged with, much less convicted of, any offence. The order is obtained in the absence of the person subject to it, and authorises them to be taken into custody. Once in custody, they are not told the evidence on which the order was obtained: they are only given a summary of the grounds on which the order was made.

Anti-Democratic, Because Transfers Power To Judges

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Opponents of a charter of rights argue that a charter would take power from the elected government and give it to unelected judges. It is part of a judges role to interpret statutes. A charter of rights tells judges that they should try to interpret statutes in a manner which protects the human rights recognised by the charter. It is difficult to see how it is undemocratic for judges to interpret laws in accordance with parliaments directions. A charter of rights is a democratically created document, like other statutes. Enforcing it is not undemocratic at all. In any event, the Victorian Charter leaves the ultimate say with the Victorian Parliament, and the Brennan Committee has recommended the same model. It is factually wrong to say that a charter would transfer power away from the Commonwealth Parliament in favour of unelected judges.

Questions 4. If Australia had a Commonwealth Charter of Human Rights, why would it be difficult for parliament to make a law that is unjust or which may offend basic values? Can you think of an unjust law? 5. How did the 2002 changes to the ASIO legislation affect peoples human rights? 6. The ASIO legislation does not take into account a fundamental legal right. What is that right? 7. How do amendments to the Commonwealth Criminal Code limit ones civil liberties? 8. Why does the author consider it difficult to subject detention orders or control orders to judicial review? 9. What are the human rights issues that are identified in the case of Mr al Kateb? 10. Would the powers of judges be increase by a charter of human rights? Support your argument with examples.

They Do Not Work?

One of the favourite back-handers to dismiss a Bill of Rights is that they dont work: after all, the argument goes, the USSR had a splendid Bill of Rights, and so does Zimbabwe, but look what has happened in those countries. They have a point, of course, but it is not a point about a Bill of Rights: it is a point about the rule of law. No constitution, no Bill of Rights, no statute, no other document, can protect rights unless the rule of law is strong. That is not our problem in Australia. Our judges are competent, hard-working and independent of the other arms of government. While I have disagreed with many judgments in Australian courts, I have never doubted the honesty or integrity of our judges. The same is not true of the USSR or Zimbabwe.

Guantanamo Bay provides both a challenge and a demonstration of this point. President George W Bush chose Guantanamo Bay in Cuba as a place of detention specifically to avoid the reach of American courts and the principle of legality; he chose it in order to place detainees beyond the protection of the US Constitution and the US Bill of Rights. He failed. In case after case, the US Supreme Court has held that the protection of the US Constitution reaches Guantanamo. Although it took a long time to expose the fraud and cruelty of Guantanamo, the fact that Bush chose Guantanamo, rather than some place on American soil, is testament to the power of a Bill of Rights and the rule of law. Bush chose Guantanamo in order to side-step the rule of law. The Supreme Court has gradually dismantled that plan.

Lawyers Feast
The Lawyers feast argument is a popular one, because everyone hates lawyers, and anything which is going to make lawyers rich and happy is obviously a bad thing. The Lawyers feast argument is a coded way of saying that lawyers want a charter of rights because it will generate lucrative work for them. But in Australia today, the people who need a charter of rights the people whose rights are denied or disregarded are almost always at the margins. They cannot afford to pay lawyers. Most human rights work in Australia today is done free of charge. No-one does human rights work to get rich. Australians generally think human rights are important, at least for themselves and their family and friends. But there is one fact they overlook. We do not have human rights because we are white or nice or Christian, but because we are human. Even people we hate or fear are human, and their human rights matter just as much as ours do. A charter of rights is a permanent reminder to parliament of that basic fact.

Questions 11. Why is a strong rule of law important? 12. In what ways would a charter of human rights influence parliament?