‘Rights reluctance’: Utilitarianism and the future of human rights in Australia

Megan Davis, University of New South Wales

Hilary Charlesworth Writing in Rights: Australia and the Protection of Human Rights University of New South Wales Press, 2002 (110 pp). ISBN 0-86840-788-7 (paperback) RRP $24.95.

In late 2001, the NSW Standing Committee on Law and Justice handed down the findings of its inquiry into whether the NSW Parliament should enact a statutory Bill of Rights. The inquiry found that the common law does not provide sufficient protection of individual rights in the absence of legislative protection, and that there have been failures by NSW governments at times to address systemic problems relating to the human rights of individuals and minority groups. It also found that NSW legislation is prepared within bureaucracies without any measurement against human rights standards, and passes without any discussion of such standards.

Despite these major concessions on the inadequacies of the protection of rights in NSW, the Committee held that it was not in the public interest for the NSW government to enact a statutory Bill of Rights. That the committee to come to this decision will come of no surprise to readers of Hilary Charlesworth’s book, given what she highlights as the utilitarian approach to human rights dominant in Australian public life. Paradoxically, however, the Committee’s findings support many of the arguments Professor Charlesworth applies in this book in advocating a Bill of Rights.

Writing in Rights: Australia and the Protection of Human Rights is a compilation of the three New College lectures Professor Charlesworth delivered in 2000. Allan Beavis, Master of New College, outlines in the Foreword that because 2000 preceded the celebration of the centenary of Federation and so of the Constitution, great consideration was given to who could deliver a series of lectures reflecting on contemporary society’s concern for human rights. Hilary Charlesworth, Professor and Director of the Centre for International and Public Law at the Australian National University, was chosen in recognition of the worldwide acclaim she has attracted for her work in international law and human rights, particularly in the field of women’s rights. The result is a compelling and valuable contribution to the growing Australian public debate about the need for reform of Australia’s human rights protection system.

According to the utilitarian argument that Charlesworth believes dominates Australian public policy, what truly matters in Australian public life is the greatest happiness of the greatest number, with little concern for—even great resistance to—the interests of minority groups who may be getting a raw deal (as opposed to those minority groups with economic power such as farmers). This could explain why the NSW inquiry found against a statutory Bill of Rights and reinforced a typically Australian faith in the ability of Australia’s representative system to deal with human rights protections. Yet as both the committee and Professor Charlesworth point out, the party political nature of Australian parliaments clearly illustrates that the convention of ‘responsible government’, while effective in rhetoric, is rarely practised. Charlesworth quotes an ANU survey’s finding that 74 percent of citizens want some form of Bill of Rights protection and 54 percent believe that rights are not well protected in Australia. By stark contrast, a phenomenal 79 percent of politicians believe that rights are properly protected in Australia.

An explanation of our ‘rights reluctance’ can be found in the first lecture, which details the constitutional conventions and why the drafters of the Constitution did not include a catalogue of rights and freedoms for all Australians. Charlesworth also surveys the paucity of rights and freedoms that exist today, leading to increasing calls for some form of legislative or constitutional entrenchment of rights and freedoms. Charlesworth’s historical overview explains Australia’s traditional reluctance toward rights protection as flowing from the traditional notion of ‘state’s rights’ that dominates the Constitution and from the principle of parliamentary sovereignty.

The convention of ‘responsible government’ is effective in rhetoric, but rarely practised.

Charlesworth acknowledges that the Constitution, being the primary document celebrated in the year of the centenary of Federation, is championed for the political and civil stability it has delivered to Australian democracy and its ability to transcend and adapt to rapidly changing times. Yet the central theme of the first lecture is that despite these successes, human rights protections seem to have remained singularly undeveloped.

One disturbing trend Charlesworth notes is the tendency of Australian politicians to counter discussions of rights with the language of responsibilities or duties. An example is the Federal Government’s suggestion that the name of the Human Rights and Equal Opportunities Commission be changed to the ‘Human Rights and Responsibilities Commission’. However, Charlesworth argues that human rights are the product of human dignity and do not need to be earned by good behaviour or the performance of duties. She explains that human rights law is essentially non-utilitarian, because it provides protection for individuals, groups, and minorities so that their interests are not always sacrificed to those of the government or political majority of the day. Thus, an increasingly poll driven political climate—in which denying the interests of minority groups from refugees to indigenous Australians is a huge vote winner—inevitably reinforces a isolationist culture unreceptive to rights dialogues, particularly the protection of the rights of a few.

Charlesworth presents a powerful argument in favour of rights reform in Australia. She examines a difficult and complex debate clearly and logically. For example, the lecture on international human rights explains the purpose and origins of Western human rights systems, providing basic and important knowledge that very few Australian citizens know about.

Reading the lecture on the international human rights framework, I couldn’t help but think of how international human rights issues and bodies are widely ridiculed as irrelevant. Consider the outcry when Amnesty or Human Rights Watch criticise the Australian government for its treatment of Aboriginal people or refugees, or when the UN Committee on Elimination of Racial Discrimination criticised Australia over the Native Title Amendments. When it comes to issues of human rights or human dignity, the shield of state sovereignty is raised in defence, yet when it comes to trade matters, WTO directives or Defence matters, ‘state sovereignty’ is rarely mentioned.

Charlesworth’s lecture on international law is an excellent introduction to competing issues of philosophy and culture at the United Nations. This lecture also highlights the important role that international standards have to play in protecting rights in the domestic sphere. But Charlesworth also acknowledges both the restraints of UN treaty bodies, manifest in resource and working time problems that affect the investigation of human rights complaints, and the unwillingness of states like Australia to take criticism from such bodies. Importantly, Charlesworth carefully explains how the human rights treaty system evolved from the tragedies of the Second World War. Unfortunately, public debate about UN human rights treaties derogating Australian sovereignty fails to recognise these historical underpinnings, which is ironic for a nation that went en masse to watch Schindlers List. Perhaps the most fascinating aspect of Charlesworth’s survey of the international arena is her inclusion of major critiques of rights discourse, including the criticisms made by indigenous people and the major challenges to the human rights movements that have been mounted by those in the developing world who argue that human rights and the international human rights system are essentially Western constructs.

The Constitutional entrenchment of rights and freedoms in Australia is decades away.

The concluding lecture argues that given Australian conservatism, a two-step approach to a Bill of Rights or rights entrenchment could be modelled on the Canadian experience. In a rights culture of resistance, perhaps the most appropriate way to develop an Australian Bill of Rights and a human rights culture is to begin with legislative protection, and move later to constitutional entrenchment.

No Bill of Rights advocate could doubt that the Constitutional entrenchment of rights and freedoms is decades away as the community grapples with some very complex concepts in learning about the political and legal structures in Australia. It will also grapple with its own rights reluctance and suspicion of rights advocacy. Improved civics education in schools and greater community knowledge about basic institutions and concepts such as the rule of law and separation of powers would assist here. Political leadership is also required on this long and difficult road.

In hindsight the NSW Inquiry’s finding against a Bill of Rights was predictable: it was well documented in the media that Premier Bob Carr is an ardent opponent of a Bill of Rights. In his submission to the inquiry, the Premier wrote that ‘the protection of rights lies in the good sense, tolerance and fairness of the community’. But as Charlesworth points out, that is the problem with Australia: a community without basic civics education and with a utilitarian approach to society cannot protect rights.

No Australian citizen in 2002 should have to rely on the good sense, tolerance, and fairness of the community to protect their rights. As the Tampa and ‘children overboard’ incidents demonstrate, the media plays an influential role in disseminating information to the public. If that information is later found to be lacking in substance, distorted by the media or in effect a lie, then community debate will have also been be distorted.

For Bill of Rights advocates, the current trend in Australian political life means that cultural and legal change will be a difficult challenge. The defects in the common law and state legislative system highlighted by the NSW Committee are probably present in most states across the nation. Such gaps in the protection of minorities and individuals would disturb anyone’s faith in the capacity of the law and parliament to protect human rights. Surely the overt exclusion of marginalised groups would shatter any belief in the oft-quoted ethos of egalitarianism and the ‘fair go’. But just like the NSW Standing Committee, Australian politicians will continue to argue that it is not in the best interests of Australian citizens to have a Bill of Rights.

Bill of Rights advocates have a long road ahead, but with advocates like Hilary Charlesworth, momentum in their favour will be hard to counter. Writing in Rights should be in every community library in the country.

Megan Davis is the Bill of Rights Project Officer at the Gilbert &Tobin Centre of Public Law, the University of New South Wales. She is currently completing her Master of Laws in International Law at the Australian National University.

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