The national parliament has ratified international conventions, but short-changed the Australian people by not incorporating the rights into national law. We the people should have our rights entrenched and enforced by the proposed charter, James Dunn says.
Towards a Bill of Human Rights: A challenge to Australian Democracy
By James Dunn
The debate over whether we should have a human right charter or, like the British, a legislated Bill of Rights, is now at a critical stage with the deadline for submissions on the subject passing in mid-June. Not surprisingly the debate has recently been intensifying, with strong opposition now coming from leading politicians who should really be championing the move, not undermining it, if they are taking human rights seriously.
Establishing a charter, or bill of rights, is fundamental to the full implementation of those human rights standards our governments ratified years ago. It is necessary in order to project these humanitarian standards before the community at large as well as our politicians. The present debate exposes a disturbing fact – some of those with responsibility for the implementation of human rights appear to fail to understand their purpose and are out to diminish their importance.
Based on many years experience as a political adviser to the Federal Parliament, I was able to observe how we took on board our international human rights obligations in a quite superficial way. Australia ignored the fact that political will and community enlightenment are absolutely essential to the full implementation of the obligations we accepted when we ratified the UN instruments. Some of our politicians, not to speak of the public at large, simply do not fully understand the fundamental importance of human rights to every aspect of our lives.
Human rights are not as an intrusion into our traditional Australian democracy but a more precise and more extensive application of those principles dear to us. They are really essential to the proper functioning of our democracy, some aspects of which may be severely tested if the present economic crisis deepens.
In general the extent to which human rights standards are implemented is today a litmus test of the state of the state of our democratic system. For this reason I am dismayed at the strong opposition coming from former premier Bob Carr and the present NSW Attorney General, who have come up with the astonishing argument that the presence of a bill or charter would somehow weaken our parliamentary democracy and the role of our judiciary. Does this mean that we should depend on our politicians for human rights protection? Like a gift from the Emperor?
This view should be rejected. Our democracy has impressive qualities, but it is vulnerable to the kind of political manipulation that may deny human rights to sections of our community. We need a counter to the prejudices that can surface in any democracy, whether of governments or of influential sections of the community. In this respect democracies like ours and are in fact strengthened by human rights constraints.
As for the constitutional factor, our Constitution offers little protection to ordinary citizens. Nor should the presence of a Bill of Rights affect the independence of the judiciary. Indeed, are critics suggesting that our formal human rights commitment should not be taken into account in relation to the cases before them?
This carefully considered international process is not only designed to eliminate those abuses that have led to devastating abuses. Its aim is to establish truly universal standards based largely on the cruel experiences of the past century, both in times of war and peace. The most basic of these are set out in the five main conventions that make up the International Bill of Rights. Far from threatening democratic practices they in fact serve to strengthen democracy, protecting it against its own frailties with what is a virtual code of conduct for all.
We are justifiably proud of Australia’s democratic record, but here there are dark chapters, even in the recent past, where political decisions and public ignorance have led to abuses of human rights – e.g. our treatment of refugees, Aborigines, and in foreign affairs our failure to oppose devastating human rights abuses, such as the East Timor experience.
What Australians have yet to fully understand is that human rights instruments are not only about our rights: essentially they also spell out our obligations as citizens to uphold the rights of others. Taken together, they should inspire us as a code of conduct for all, for individuals as well as state and other agencies, an essential counter to the kind of political and other prejudices that surface in our communities from time to time.
Hence in the past when Australia was considered an outstanding democracy, we discriminated against our indigenous people, against our women, and at times against non-Europeans. Internationally, our governments – often in the guise of protecting the national interest – virtually dignified human rights abuses abroad. We detained like criminals refugees whose right ‘to seek in another country refuge from well-founded fears of persecution’ is clearly spelt out in human rights instruments.
What the Bill or Charter will do, over time, is strengthen our democracy not undermine it, establishing firmly in the community at large, as well as in our political culture, the essential relevance of these humanitarian standards to the issues that crop up daily. It is these standards we need to invoke, for example, when dealing with violence involving our ethnic minorities.
Finally, there are those who would argue that human rights are an alien intrusion. That is quite wrong. Australians from the outset played a strong role in the drafting of these human rights standards, starting from the time of Dr. Evatt. Australia was, for example, one of the eight-member preparatory committee, led by Eleanor Roosevelt, that drafted the Universal Declaration itself. And Australians have played important roles in the formulation of some of the key conventions. Sadly, however, when it comes to implementation we have been lagging behind some of the world’s leading democracies. We are part of arguably the Twentieth Century’s outstanding contribution to human civilization, and we should be a leader, not a reluctant follower.
* James Dunn AM is a former Australian diplomat, UN human rights expert and a member of CLA. His articles first appear in the Illawarra Mercury newspaper, then on CLA’s website a few days later.