Australia remains one of few developed countries that have yet to put in place a Bill of Human Rights. Claire Mallinson from Amnesty International Australia outlines the need for such a fundamental legal mechanism.
Let’s get our Act together Australia!
It is now more than a year since the Federal Government announced a nationwide consultation on the promotion and protection of human rights in Australia.
Emerging from one of the most extensive public consultations in this country’s history are numerous stories from people who have witnessed or experienced human rights violations.
The overwhelming feeling was that as a nation we can and should do better.
Children behind bars, mandatory detention, the suspension of the Racial Discrimination Act and our anti-terror legislation all illustrate how human rights that are not formally protected can be eroded.
With a patchwork of ad hoc legislation that varies depending on where you live, it is often the most vulnerable and marginalised members of society who end up falling through the cracks.
On 8 October 2009 the Federal Attorney-General was presented with the highly anticipated National Human Rights Consultation Committee report.
Receiving 35,014 written submissions, the Committee found overwhelming community support for a Human Rights Act. Of the 33,356 submissions that addressed the option of a Charter of Rights or a Human Rights Act, 29,153 were in favour of such an option.
This is in line with the findings of a Nielsen Poll commissioned by Amnesty International, which found that 81 per cent of people surveyed would support the introduction of a law to protect human rights in Australia.
Reflecting the support of the Australian community, the Committee has recommended that the Federal Government adopt a federal Human Rights Act. Amnesty International welcomes this recommendation and urges the Government to adopt a Human Rights Act that:
- protects the rights of all people in Australia;
- respects the principle that all human rights are universal, indivisible, interdependent and interrelated, and therefore recognises all civil, cultural, economic, political and social rights;
- incorporates Australia’s obligations under international human rights law, as contained in the Universal Declaration of Human Rights and the various international covenants and conventions to which Australia is already a party, as well as having the flexibility to allow the implementation of the obligations of subsequent treaties;
- promotes a system of education and training for human rights-based approaches, so that policy development, day-to-day service provision and decision-making are conducted with due consideration of the responsibility to recognise the dignity and rights of all people; and
- establishes effective and independent accountability mechanisms, including appropriate and accessible remedies for breaches.
Australia is the only liberal democracy without overarching human rights protection at a national level. And while Amnesty International works for the highest possible standard of human rights protection, the Australian Government has ruled out a constitutionally-entrenched model at this stage. We therefore believe a Human Rights Act is the best way forward at this time.
Throughout the National Human Rights Consultation, we encouraged as many people as possible to participate in the process. More than 10,000 individuals made personal submissions through Amnesty International to the Consultation Committee.
They came from a wide range of people across the country, including plumbers, nurses, church ministers, marine biologists, artists, psychologists, accountants, stay-at-home mums, company directors, journalists, geophysicists, travel consultants, photographers, medical practitioners, builders, filmmakers, job seekers, designers, and pensioners as well as members of trade unions and various groups and clubs.
Clarissa from Queensland wrote:
“If it’s not in an act - it’s just words we can ignore.”
Michael from South Gippsland said:
“Adopt the human rights act, weave it into the fabric of our society across the land, stand by it and promote it. Let us set an example for the whole world!”
Nabib from Coffs Harbour had this input:
“I don’t want to just hope or assume that my rights are protected, I want to know that there is a law to back this up and that I have an avenue if my rights are not respected.”
The Committee found that “for most Australians the main concern is the realisation of primary economic and social rights”. This included the right to an adequate standard of living, the right to the highest attainable standard of health, and the right to education.
However, this concern is not reflected in the Committee’s recommendations. The Committee has recommended it not be permissible for individuals to take action in court when they have had their economic, social or cultural rights violated. This move undermines the principle that human rights are universal, indivisible, interdependent and interrelated. After all, you need your economic, social and cultural rights to be fulfilled in order to meaningfully enjoy civil and political rights within a dignified life. As Eleanor from Woodville said:
“You can’t just pick one, human beings deserve all of these things. We’re all the same in the end.”
There is also an intrinsic link between many environmental impacts and the ability to realise a range of human rights. A State’s failure to act effectively to curb climate change could, for example, result in widespread violations of the right to life, right to health, right to water, right to food, and the right to housing.
While UN mechanisms that monitor countries’ adherence to international human rights conventions have criticised Australia for failing to fully incorporate treaty obligations into domestic law over the years, those opposed to the idea of a Human Rights Act have raised concerns about the risk of compromising parliamentary sovereignty. The 2006 UK Review of the Implementation of the Human Rights Act by its Department of Constitutional Affairs, however, found the Act had in fact improved the effectiveness and efficiency of policy, by ensuring it better met the needs of an increasingly diverse population.
Contrary to some speculation, the UK Human Rights Act has not turned the country into a litigation battlefield. Most of the cases have been resolved before ever ending up in court. The Review of the implementation of the Human Rights Act (2006) also found the Human Rights Act not to have altered the constitutional balance between Parliament, the Executive and the Judiciary.
In its report, The Human Rights Act - Changing Lives (2007), the British Institute of Human Rights has attempted to document positive changes the Act is making to peoples’ lives. One such instance involved an elderly husband and wife separated by their local authority after 65 years of marriage. From the report:
“A husband and wife had lived together for over 65 years. He was unable to walk unaided and relied on his wife to help him move around. She was blind and used her husband as her eyes. They were separated after he fell ill and was moved into a residential care home. She asked to come with him but was told by the local authority that she did not fit the criteria. Speaking to the media, she said ‘We have never been separated in all our years and for it to happen now, when we need each other so much, is so upsetting. I am lost without him – we were a partnership’. A public campaign launched by the family, supported by the media and various human rights experts and older people’s organisations, argued that the local authority had breached the couple’s right to respect for family life (Article 8). The authority agreed to reverse its decision and offered the wife a subsidised place so that she could join her husband in the care home.”
The National Human Rights Consultation Committee in Australia has recommended a Human Rights Act based on a ‘dialogue’ model, which would ensure that parliament has the ‘final say’. Under this model, where legislation is found to be incompatible with human rights, only the High Court would have the power to issue a declaration of incompatibility. The declaration would not invalidate the legislation, but would require the parliament to re-examine it and provide a response within a certain period of time.
Others have expressed concern about a potential impact on religious freedom in this country. But precisely the opposite is true. The Committee’s Human Rights Act model protects “the right to freedom of thought, conscience and belief” as well as “freedom to manifest one’s religion or beliefs”.
It should be noted that we already have functioning human rights legislation operating in parts of this country. Victoria has a Charter of Rights and the ACT a Human Rights Act that are changing peoples’ lives. An example lies in the story highlighted by the Human Rights Law Resource Centre of a pregnant single mother who was living in community housing with her two children in Victoria. Some time in 2008 she received an eviction notice requiring her to vacate her home within 120 days. The notice did not provide any reasons as to why she was being evicted. The Victorian Charter of Rights was used to argue that the eviction was incompatible with her family’s rights to privacy, family and the home, and successfully prevented her and her family from being evicted.
Following its nationwide collection of views, the Committee’s report documented that:
“three recent developments in law and government policy were repeatedly referred to as giving rise to human rights concerns: the Northern Territory Emergency Response (also known as the Intervention), the treatment of asylum seekers, and national security legislation. Many who participated in the Consultation felt that, in these instances, a balance between individual liberty and the public interest might not have been struck.”
The people of Australia have voiced support in unprecedented numbers for a Human Rights Act to tackle such concerns.
Their views echo those of world leaders who came together in 1948 to develop the Universal Declaration of Human Rights. Alongside other world leaders, Australia committed to global values and made 30 global promises that recognise every person is born free and equal in dignity and rights.
As a signatory to international treaties, Australia has committed to protecting all of the rights enshrined in this Declaration. Now is the time to put the words, the signatures and the promises into action.
The fundamental role of a Human Rights Act is to prevent human rights violations from occurring. This is the chance of a generation to unequivocally commit to protecting the most vulnerable and marginalised members of our community.
Throughout 2010, we at Amnesty International will certainly be doing our best to keep human rights protection in Australia high on the agenda.
Claire Mallinson is National Director of Amnesty International Australia