Arguments for an Australian charter of rights

9 Dec

George Williams, author of ‘Charter of Rights for Australia’ and Julian Burnside, a barrister and human rights advocate have both called for a charter of rights in Australia.

‘A large part of the problem (in the absence of a charter or bill of rights) lies in human rights being dependent on the wisdom and good sense of our elected representatives. This can be a frail shield when one party controls both houses of the Federal Parliament, or at a time of fear’ Williams commented in an article for Amnesty International.

Julian Burnside, in the same publication, also noted that Australia cannot depend on ‘common law’ to protect human rights as previous cases such as the detention of asylum seekers has amply demonstrated. He conceded that the barrier in mobilising public opinion for such a bill is the fact that most violations in Australia happened to ‘mostly members of unpopular minorities’.

Williams also noted that the lack of such a charter contradicts Australia’s signatory of the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights. The best way to reconcile the discrepancy is to pass a new bill through the Federal government, making covenants part of the law while retaining the Constitution, thereby overriding the need for a referendum.

He also argued that a charter could prevent the enactment of ‘bad laws’ as well as  to ‘educate, shape attitudes and bring hope and recognition to people who are otherwise powerless’.

Like Julian who was previously against the idea, Justice Kirby believed that having a charter is about ‘improvement and enhanced transparency in our governmental institutions’.

In an address to critics of a human rights act, he lists and refutes nine of the commonly held myths:

1. ‘There is no need for it’. He contends that such an act could ‘stimulate the democratic process’.

2. Other states such as Soviet Union and Zimbabwe have their version of Bill of Rights which still fails to protect its intended recipients. He argued that having a ‘statement of basic rights, constantly before Parliament and the citizens, could encourage legislation that is respectful of the fundamental human dignity of all citizens’.

3. A bill of rights is ‘alien and completely new’ in Australia to which he replied that human rights while ‘deeply enshrined in common law principles’ can ‘easily be overridden, including thoughtlessly, by the legislature’. Therefore, a charter can ‘remind Parliament of any serious departures from fundamentals’. In addition, Australia is a signatory to ‘most of the important human rights treaties adopted by the United Nations since the Second World War’.

4. Critics believe that human rights can be left to the discretion of the legislature. Kirby argues that this is sometimes not the case especially when we are talking about human rights of minorities.

5. ‘It can’t be done piece-meal’. He argues that ‘the notion of proceeding with variations of the charter model in different States before embracing a federal model is not antithetical to federation’.

6. A bill of rights will ‘encourage judicial activism’ to which he argues that the proponents of such a bill are not encouraging the US model.

7. ‘Too many borderline decisions’. He contends that the current charter model gives elected lawmakers ‘the last say’.

8. Critics also point out that it ‘is electorally unpopular’ though Kirby suggests that statistics or the 1988 referendum to ‘include some basic rights in respect of State legislation in the federal Constitution was overwhelmingly rejected’ could be explained as a result of poor explanation. He contended that later findings by the Australian National University discovered that as many as 70.6% of Australians wanted a Bill of Rights.

9. Some argued that it ‘is constitutionally impossible’. While amending the constitution may be difficult, he argued that ‘deft drafting could probably overcome the first of these difficulties’.

References

Williams, G 2008, ‘We should do better’, Human Rights Defender – Amnesty International, Vol. 27, No. 4, December 2008 – February 2009, pp. 8.

Burnside, J 2008, ‘End the slide’, Human Rights Defender – Amnesty International, Vol. 27, No. 4, December 2008 – February 2009, pp. 9.

Williams, G 2007, ‘Human rights finally take center stage’, ON LINE Opinion, posted 24 December, accessed 8 December 2008.

Kirby, M 2008, ‘The National Debate about a charter of rights and responsibilities – answering some of the critics’, Address at President’s Luncheon of the Law Institute of Victoria in Melbourne, August, Human Rights Act Campaign Australia, accessed 8 December 2008.

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