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‘Unelected’ critics selectively dislike judges deciding law

‘Unelected’ critics selectively dislike judges deciding law

The Australian Parliament must lead the way towards setting out the rights of Australians, Prof George Williams says. Critics who say “unelected judges” making decisions on rights laws would be a problem are in a strange position – isn’t it judges who must interpret and decide on all laws passed by parliaments? Why does “unelected” become an issue only when citizen’s rights is what a particular law is about?

Parliament must lead human rights reform

By George Williams*

Much has been written about the evils that will be visited on Australia by “unelected judges” under a national charter of human rights. Not only is this wrong, it misses the point.

Under the parliamentary charter model proposed for Australia, judges would only have a minor role. The real focus would be on improving how the federal Parliament operates. The idea is to prevent human rights problems occurring in the first place so that there is no need to go to court.

Australia will not adopt anything like the US Bill of Rights, under which judges can strike down laws and have the final say on contentious social issues. Instead, the proposal is that we adopt an ordinary Act of Parliament to protect human rights, which can then be changed by Parliament itself over time in line with community attitudes. This type of law is now working successfully in New Zealand and the UK, and has been in place in the Australian Capital Territory since 2004 and Victoria since 2006. We now need a national law of this kind.

The new law would reform the procedures and committees of federal Parliament to bring about better debate and outcomes on human rights. It would require that more attention be given to the rights of ordinary Australians, as well as those of the most marginalised and disadvantaged in the community. If Parliament wants to make a law that infringes human rights, it could still do so, but only by confronting the issue head-on in a way that would involve real deliberation and more media and community scrutiny.

Parliament needs reform when it comes to human rights. The record speaks for itself.

Recent federal laws have restricted freedom of speech under new sedition offences, twice suspended the federal Racial Discrimination Act to allow such discrimination in native title and the Northern Territory intervention, and detained children in immigration detention for years at a time so that many have become mentally ill.

The problem is partly one of inadequate processes. The enormous volume of new laws now made each year by Parliament means that new laws and regulations may receive little or no scrutiny. The day is now long past when parliamentarians could read, let alone debate, all of the new laws that they make. The result can be poor for human rights due either to oversight or manipulation of parliamentary procedures so as to avoid scrutiny. Even laws with a major impact on our freedoms can be rushed through Parliament with minimal debate, with the media and community left oblivious as to the outcome.

For example, the complex package of legislation for the Northern Territory intervention required robust debate to get the balance right. Instead, 480 pages of new law was seen for the first time when introduced into the House of Representatives on the morning of 7 August 2007. It was passed later that same day, with the key debate on the suspension of the Racial Discrimination Act running for only 13 minutes. The Senate did only a little better.

When it comes to human rights reform, Parliament – and not the courts – must lead. The goal must be to prevent the violation of human rights, and not merely to provide remedies for their breach after the event. This means putting in place processes and protections that ensure that laws and policies respect human rights when they are first made by parliaments and governments.

To make the greatest difference, the focus must be on day-to-day government services. Many human rights problems affect Australians at vulnerable points in their life when they come to depend on government-delivered or -funded services in essential areas like aged care, child protection and mental health. While the system generally works well, it can still allow the mistreatment of people in ways that are unjust and infringe the dignity, respect and freedom to which everyone is entitled.

Australia is now the only democratic nation in the world without a national charter or bill of rights. This means that our human rights are uniquely dependent on the wisdom and good sense of those we elect. Unfortunately, the record shows that this can be a frail shield, especially when any one party controls both houses of the federal Parliament. Without a charter of rights, our freedoms can be ignored or taken away far too easily.

While Australia’s legal system has many checks and balances, there is a gaping hole when it comes to our basic freedoms. It is time that we fixed this. We should adopt a national charter of rights to improve how Parliament operates so that new laws are made and basic services delivered in a way that better reflects the human rights of everyone in the community.

* George Williams is the Anthony Mason Professor of law at the University of New South Wales, and a CLA member.  This article first appeared in the Sydney Morning Herald on 2 June 2009 under the heading ‘Wisdom of politicians is frail shield for our rights’

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