Wednesday, December 14, 2005

Why We Need an Australian Bill of Rights

John von Doussa QC (President of the Human Rights and Equal Opportunity Commission) makes the case on New Matilda. Following is an excerpt:

"After the Palmer Inquiry

It is a matter of record that many human rights advocates were at the time complaining vigorously about the injustices of the migration system, a view endorsed by the HREOC report, A Last Resort, on children in detention. However it was not until the revelations of the Palmer Inquiry following the detention of Cornelia Rau that public sentiment swung strongly behind the criticisms.

Although there was strong public support for the actions of the Howard Government at the time of the Tampa incident, and for the announcement of the first counter-terrorism legislation in 2002, I sense that public sentiment is at last changing. I have already referred to changed attitudes about migration detention. I think that the debate that has occurred over the lack of judicial oversight in proposed counter-terrorism measures provides further evidence of change.

Had there been a human rights charter of some sort, I doubt whether the occasion for the recent debate over the counter-terrorism legislation would have arisen. It is likely that human rights principles relating to a fair trial and judicial oversight would have been incorporated at the outset, and even if that had not occurred, a human rights remedy would in itself have provided protection.

It is interesting to observe that there is no close analogy to be drawn between the counter-terrorism legislation in the United Kingdom, and that proposed by the Australian Anti-Terrorism Bills of 2005. While a form of preventive detention is possible under the UK legislation, because of their Human Rights Act, people in the United Kingdom are not without remedies. This was demonstrated by the decision of the House of Lords in the case of A v Secretary of State in December 2004, which held to be incompatible with human rights principles a law which permitted the detention of unlawful non-citizens who were suspected of terrorist leanings, but who were not charged with any offence.


Firstly, what happened with the migration laws is being mirrored across the Executive branch of government. More and more discretionary power is given to the Executive, and less and less detail of conditions governing the rights and duties of individuals is stated in legally enforceable statutory provisions.

It is all very well for government to say we are all protected by the rule of law and the respect that Australia accords to that core principle. However, if the regulation of our lives is not stated expressly in the law, but is a matter of discretion, what protection does the rule of non-existent law give? To give real substance to the principle, enforceable and certain rights need to be express — and this could be achieved in a Charter or Bill of Rights.

Secondly, one important purpose of such a Charter will be to protect the rights of people in minority groups. One minority group in Australia that is particularly in need of enforceable fundamental rights is the Indigenous community. Aboriginal people have advocated for a treaty, but their advocacy has fallen on a deaf ears. I perceive that there are strong self-interest groups in our community who treat the notion of a treaty as giving one section of our community something which those self-interest groups would not have. For that reason they oppose it. Without debating the merits of that proposition, if there were a universal charter to protect the rights of everyone, the basic rights recognised in it would go a long way to giving protection to one community which plainly needs it.

I commend New Matilda and the co-hosts of this forum for advancing the debate on a very important topic."

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