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April 2010 Protecting human rights in Australia: A long and winding roadLouise Chappell, John Chesterman and Lisa Hill The Politics of Human Rights in Australia, Port Melbourne, Cambridge University Press, 2009 (286 pp). ISBN 9-78052170-774-9 (paperback) RRP $49.95. Australia is the only Western democracy without some form of a bill of rights. Some deplore this state of affairs as a fundamental weakness in our polity, while others regard it as proof of the genius of Australian democracy. This debate has waxed and waned ever since Federation, occasionally spiked by politicians’ attempts to reform Australian laws.
The protection of human rights has had a particular prominence in Australia over the last twelve months. In December 2008 Commonwealth Attorney-General Robert McClelland appointed a committee to consult across Australia to determine what rights and responsibilities should be protected and promoted in Australia, whether human rights were sufficiently protected and promoted, and how Australia could better promote and protect human rights. Father Frank Brennan, the distinguished Jesuit lawyer, chaired the committee whose other members were Mary Kostakidis, former SBS newsreader, Mick Palmer, former Commissioner of the Australian Federal Police and Tammy Williams, a young Indigenous barrister. The Brennan Committee travelled all around Australia to consult in public meetings and it received a little over 35,000 written submissions—the largest number ever in an Australian public consultation. It engaged consultants to undertake focus groups, started a Facebook page, and ran an online forum. Its hefty report on these consultations, published in November 2009, revealed considerable public support for better human rights protection in Australia. The report described gaps and inconsistencies in the protection of human rights: the Constitution offers some limited protection, as do some state and Commonwealth laws; and the common law recognises some human rights, but can be overridden by legislation at any time. Overall, the Brennan Committee found, the human rights landscape in Australia is a patchwork of limited protections, undermining effective human rights protection (National Human Rights Consultation Report 2009). Focus group research indicated that many Australians thought their human rights were adequately protected mainly because they had never experienced threats to their own human rights. This research also revealed that most people had no understanding of the protection mechanisms for human rights, or of their limited and partial nature.
The Brennan Committee made a series of recommendations to enrich Australia’s human rights culture, offering the government a grand spectrum of reform options. These ranged from extending human rights education, to enhancing human rights scrutiny in federal parliament, to expanding the jurisdiction of existing institutions to the adoption of an Australian Human Rights Act. The proposed Human Rights Act was based on a ‘dialogue’ model of human rights protection, involving a dialogue between the courts, the legislature and the executive, but in the final analysis, allowing the legislature to override judicial cautions about rights breaches. Despite the unprecedented public consultation and the richness of the Brennan report, it has met with a rather superficial response. There have been strong attacks on the idea of human rights legislation from sections of the media, politicians and Church leaders, but there has been little serious debate about the Brennan’s report thoughtful and detailed recommendations. From what we can understand, Cabinet is divided on the report and has decided to give its recommendations low priority in the lead up to the 2010 federal election. Into this rather bleak environment comes an engaging and accessible new book, The Politics of Human Rights in Australia by political scientists Louise Chappell, John Chesterman and Lisa Hill. The book was written before the Brennan report was published and thus does not directly discuss the report’s findings, but it is a valuable companion to understanding the current doldrums of human rights protection in Australia. Much of the literature on human rights in Australia has come from lawyers (see, for example, Bailey 2009). The authors of The Politics of Human Rights in Australia observe that there is no ‘comprehensive study that examines the political nature of Australia’s protection of human rights’ (p. 1) and set out to fill this gap, rescuing human rights from its domination by lawyers. This claim intrigued me. Human rights is an area where it is particularly difficult to disentangle law from politics and I wondered how the authors conceived the two spheres. In other words, what is a political, as opposed to a legal, analysis of human rights protection in Australia? One useful aspect of a political perspective on human rights is a wide lens with respect to the relevant actors. The Politics of Human Rights in Australia draws attention to the role of non-government organisations, for example, in their work in raising the rights of the vulnerable (pp. 53–56). The role of legislatures and executives is also given considerable prominence and the role of courts is (appropriately) given shorter shrift. It is striking, then, that the political analysis offered by The Politics of Human Rights in Australia is so optimistic about the role of law and legal institutions. For example the book assumes that the influence of international law on the High Court of Australia is significant and capable of changing the way that human rights are understood in Australia (p. 53). This may have been true of the High Court under Chief Justice Mason, but more recent members of the High Court have largely resisted human rights arguments based on international law, sometimes dismissing them in scathing terms. Thus in Al-Kateb v Godwin in 2004, a case about Australia’s policy of indefinite detention of stateless asylum-seekers, Justice Kirby’s proposal to interpret the Constitution consistently with international law was described as ‘heretical’. Despite its explicitly political focus, in some respects The Politics of Human Rights in Australia echoes the limitations of the legal debate about human rights. For example it focuses on civil and political rights and does not consider economic, social or cultural rights in any detail. The authors explain that this is because ‘the parameters of political debates surrounding civil and political rights are easier to see than are those surrounding economic and social rights’ (p. 4). This argument parallels that of the Brennan report. Although it found from its consultations that Australians considered economic and social rights critical to their wellbeing, the Brennan report recommended against their inclusion in an Australian Human Rights Act on the grounds that they were not susceptible to judicial determination (National Human Rights Consultation Report 2009, p. 365).
Such approaches to economic, social and cultural rights are, in my view, too narrow and gloss over the interconnections between all categories of rights. Economic and social rights are defined at the international level in a comparable manner to civil and political rights, in the International Covenant on Economic, Social and Cultural Rights, to which Australia has been a party since 1976, and their parameters are not qualitatively different. The resources required to support economic and social rights are also no different in principle to those of civil and political rights. The jurisprudence of the South African Constitutional Court illustrates the cautious way that the judiciary can interpret and protect economic and social rights, yet challenging unreasonable decisions. It is true that Australian rights debates do not often address these rights explicitly, but it would have been useful had The Politics of Human Rights in Australia investigated their apparent invisibility. The Politics of Human Rights in Australia elegantly foreshadows many of the points made in the Brennan report. It uses a series of case studies to illustrate the human rights issues that confront Australia: for example electoral rights, Indigenous rights, women’s and gay rights, and the rights of refugees. The book makes a careful and convincing case about the failures of Australian democracy in these contexts. Its main argument is that the Australian tradition of leaving the protection of human rights to legislatures has worked adequately for most majority groups (with the exception of women), but that it has been disadvantageous for minority groups such as Indigenous Australians, claimants for refugee status and people suspected of terrorist activities or sympathies. Like the Brennan report, the book supports an Australian Charter of Human Rights, a legislative rather than constitutional form of rights protection. The rationale for legislative human rights protection is that it preserves the role of the elected legislature in making accountable decisions while, it is said, constitutionally entrenched human rights guarantees can transfer power from the legislature to the unaccountable judiciary. Australia’s two existing legislative bills of rights, the ACT Human Rights Act of 2004 and the Victorian Charter of Rights and Responsibilities of 2006, are based on this ‘dialogue’ model of human rights protection: the idea is that the judiciary will use specified human rights in ruling on the meaning of statutes and in holding public authorities accountable for their actions, but that, while the legislature must consider the views of the judiciary, the former will always have the final say. Although it supports a legislative bill of rights, The Politics of Human Rights in Australia properly emphasises that such a development would not resolve all human rights concerns. In preserving parliamentary sovereignty, a Charter would allow the legislature to act in a way that breaches human rights, unlike a constitutional bill of rights, which would render human rights-inconsistent laws invalid. The book gives a helpful example of this in its account of the Northern Territory intervention into Aboriginal communities, begun in 2007 and still afoot. One aspect of the intervention was the suspension of the Commonwealth Racial Discrimination Act in order to allow laws that effectively discriminated against people on the basis of race: laws restricting the use of alcohol and the Internet and quarantining the payment of welfare benefits in Aboriginal communities alone. While the Northern Territory intervention illustrates the limitations of human rights legislation, it would have been helpful if The Politics of Human Rights in Australia discussed at greater length the non-legal, political, pressure that a legislative bill of rights can generate to encourage compliance with human rights. Under the ACT and Victorian bills of rights, the legislature must make a formal statement if it acts to breach human rights and this may act as a restraint on its willingness to do so. Moreover the experience in the ACT and Victoria is that human rights are now taken into account early in policy development, ensuring that the bureaucracy engages in human rights scrutiny before legislation is drafted (Byrnes, Charlesworth & McKinnon 2009).
The final chapter deals with a particularly modern topic, civil and political rights ‘in an age of terror’. The chapter sets out opposing positions on the place of human rights since 11 September 2001: the first is that rights should always ‘trump the collective need for security’ (p. 221); the second is a ‘majoritarian’ view that ‘the rights of minorities may be justifiably violated in times of security crises’ (p. 222). The authors argue for a ‘third way’ in this debate, drawing on the work of Michael Ignatieff (2004), involving ‘decisive force prudently constrained’ (p. 243). I found the characterisation of the two sides of the debate rather stark. For example, it does not seem accurate to describe ‘libertarians’ as referring to human rights as a ‘system of indivisible absolutes’ (p. 245). Indeed, the formulations of many human rights guarantees allow for limitations on the basis of community protection (public health, public safety and so on) and human rights are regularly made subject to the restrictions necessary in a democratic society. For example, the ACT Human Rights Act provides that ‘human rights may be subject … to reasonable limits set by Territory laws that can be demonstrably justified in a free and democratic society’ (section 28). I am unconvinced by Ignatieff’s third way because it effectively endorses a two track system of human rights protection: human rights are fully available to most people, but designated subsets of people (for example, suspected terrorists) have lesser claim on them. The omnibus category of ‘terrorism’ which is deployed in modern debates should be closely scrutinised. As Conor Gearty has argued, the war against terrorism is built on a division of the world into ‘good’ and ‘evil’ camps. The idea of human rights developed over the last 60 years is that human rights attach to every person, regardless of whether we label them good or bad. The wave of anti-terror laws over the last decade undermines this development by establishing categories of people who are unable to claim the full protection of basic rights because they have been tarred with the word ‘terrorist’. Gearty (2006) has pointed out that:
One way ahead would be to consider terrorism, not as a distinct crime, but one that can be dealt with through the criminal law. On this analysis alleged terrorists would be regarded as criminal suspects to whom the standard principles of due process should apply. As Lucia Zedner (2005) has argued, the criminal law is well equipped to deliver a principled approach to managing the tensions between security and human rights. The politics of human rights in Australia is complex. Australia has engaged with the international human rights system with some energy, becoming a party to all the major human rights treaties. It has tended, however, to regard human rights as an issue for other countries, but not a domestic concern. The Politics of Human Rights in Australia allows us to see the way that human rights are sidelined in our own political system and the way that our polity is impoverished by this. REFERENCESBailey, P. 2009, The Human Rights Enterprise, LexisNexis/Butterworths, Sydney. Byrnes, A., Charlesworth, H. & McKinnon, G. 2009, Bills of Rights in Australia: History, Politics and Law, UNSW Press, Sydney. Gearty, C. 2006, Human Rights in an Age of Counter-Terrorism, Oxford Amnesty Lecture, 23 February [Online]: Available: http://www.lse.ac.uk/collections/humanRights/articlesAndTranscripts/Oxford_Amnesty_Lecture.pdf [2010, Apr 7]. Ignatieff, M. 2004, The Lesser Evil: Political Ethics in an Age of Terror, Edinburgh University Press, Edinburgh. National Human Rights Consultation Committee 2009, National Human Rights Consultation Report [Online], Available: http://www.humanrightsconsultation.gov.au/www//.nsf/Page/Report [2010, Apr 9]. Zedner, L. 2005, ‘Securing liberty in the face of terror: Reflections from criminal justice’, Journal of Law and Society, vol. 32, no. 4, pp. 507–533. Hilary Charlesworth is an Australian Research Council Federation Fellow at the Regulatory Institutions Network of the Australian National University. She chaired the ACT Bill of Rights Consultative Committee in 2002–03. |
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