How a charter of rights could protect Australians’ fundamental freedoms

Australia’s record of human rights protection in areas such as Indigenous people, asylum seekers and freedom of speech are perennial topics of debate. The focus of these discussions is now shifting to whether Australia can take steps to establish a stronger legal framework for protecting human rights.

One reason for this is Australia is in the final stages of defending its record in a bid to secure a seat on the UN Human Rights Council. Another is that Australia’s recent experience on human rights is beset with deep flaws and inconsistencies.

Matters of concern

Concerns have been raised about whether human rights are adequately protected in the wake of reports of mistreatment of juvenile detainees in the Northern Territory, the endemic issue of elder abuse, and the startling prevalence of modern slavery in Australia.

Each of these issues has prompted federal inquiries. And there are still many more human rights issues that have not moved the government to act. These include the treatment of asylum seekers at regional processing centres, and the inexplicable jailing, sometimes for up to ten years, of people charged with crimes for which they are deemed unfit to stand trial because they suffer from mental illness.

The outgoing president of the Australian Human Rights Commission, Gillian Triggs, was right when she said Australia’s human rights record is “regressing on almost every front”.

Another disturbing trend is the speed with which Australian parliaments are enacting laws that diminish human rights.

In 2016, the chief justice of the New South Wales Supreme Court, Tom Bathurst, found 52 examples of laws in that state alone that impinged on the presumption of innocence.

In February this year, the Institute of Public Affairs think-tank identified 307 laws that infringed just four rights: the presumption of innocence, natural justice, the right to silence, and the privilege against self-incrimination.

Another 2016 study found 350 current laws that infringe democratic rights such as freedom of speech.

Further reading: Australia doesn’t have a constitutional right protecting freedom of the person – it needs one

How a charter might work

Against this backdrop, many argue the time has come for Australia to adopt a national charter of rights. Australia is the only democratic nation in the world without such a national law.

The idea has been gaining traction, particularly at the state and territory level. The Queensland government recently announced it would enact a human rights act, based on the ACT and Victorian models, which have been in force for 13 and 11 years respectively. There are also pushes for NSW and Tasmania to adopt such legislation.

These developments raise the questions: if a charter or human rights act was to be enacted at the national level, what would it look like? And how would it protect human rights?

Our new book, A Charter of Rights for Australia, discusses what such a charter would look like at the national level, and explains how it could benefit Australians.

The starting point should not be a constitutionally entrenched bill of rights in the vein of the US Bill of Rights.

Instead, a charter of rights for Australia should be enacted by parliament as ordinary legislation. This would have the advantage of flexibility: future parliaments would be able to update the charter as needed to match changing community values and expectations.

A charter of rights in this form would not transfer sovereignty from parliament to the courts, and would not give courts the power to strike down laws.

Rather, following the models adopted in the ACT, Victoria and the UK, the courts’ role should be modest, limited to functions such as endeavouring to interpret legislation consistently with human rights, and identifying laws that breach human rights and which parliament should consider again.

This model puts the focus on improving human rights protection by way of parliament making good laws and government agencies applying those laws fairly.

One useful feature of the ACT and Victoria charters is that parliamentary committees scrutinise proposed laws for compatibility with human rights prior to being passed. For example, in 2014 alone, the ACT government moved almost 100 amendments to seven bills in response to comments and suggestions made by its human rights parliamentary committee.

The existence of a charter of rights can make it more likely that human rights concerns are raised – and fixed – before a law is passed.

The primary responsibility for ensuring human rights are protected under a charter should fall to the government, rather than the courts. The Australian Federal Police, for example, would have day-to-day responsibility for applying human rights in protecting the community from crime and safeguarding the rights of the accused.

This would mean that if the police chose to detain you as part of an anti-terrorism operation, it would be their responsibility to ensure you are treated humanely while detained. And the charter would provide for consequences should they fall short.

Finally, like instruments such as the Universal Declaration of Human Rights, a charter of rights could also have a symbolic force that would promote important values like freedom, community responsibility and cultural diversity.

One of the most important contributions a charter of rights can make is not the benefit it brings to the small number of people who succeed in invoking rights in court. Rather, its main value lies in how it can be used to educate, shape attitudes and bring hope and recognition to people who are otherwise powerless.

Authors

George Williams

Dean, Anthony Mason Professor and Scientia Professor, UNSW Law School, UNSW

Daniel Reynolds

Legal Researcher, UNSW

This article was originally published on The Conversation. Read the original article.

Australia doesn’t have a constitutional right protecting freedom of the person – it needs one

The recent wrongful detention of two Australian citizens by immigration authorities highlights that our Constitution offers inadequate protection for freedom of the person.

This is not the first time Australian citizens have been unlawfully detained. In 2001, Vivian Solon, who had suffered a head injury, was deported even though she told immigration officials she was an Australian citizen. In 2004, Cornelia Rau, also an Australian citizen, was held in immigration detention after she was unable to identify herself because of mental illness.

The government could do this because migration legislation does not require judicial authorisation for a person to be deprived of their freedom. The Solon and Rau cases were found to be only two of more than 247 instances of unlawful detention that had occurred over the previous 14 years. The extent of the government’s power was revealed in 2015, when the Department of Immigration announced Operation Fortitude. This would have involved stopping people randomly on Melbourne’s streets to check their migration status. The operation was cancelled only after mass public protest.

So, anyone who is walking in the Melbourne CBD and speaks with a strange accent, or has suffered a brain injury, or is experiencing mental illness and cannot demonstrate a right to be in Australia, is liable to detention at best – and deportation at worst – without recourse to the courts.

Where the Constitution lacks

The reason the government has this power is because Australia’s Constitution does not adequately protect individual liberty.

In 1992, the High Court held that separation of powers means that only courts can declare people guilty of crimes and imprison them. It therefore held that parliament cannot enact laws authorising the government to do that.

However, the court said that parliament can authorise the government to order so-called “non-punitive” detention - for example, detention for immigration purposes or in cases of communicable diseases.

Section 75(v) of the Constitution allows someone to challenge government decisions on administrative grounds. However, the High Court has held that this section does not allow the courts to decide whether the exercise of power is reasonable. On this basis, it found it would be lawful to detain someone under the Migration Act forever.

The court has also held that there may be many other – undefined – circumstances in which people can be detained without court approval.

The concept of “non-punitive” detention is vague. It is also oxymoronic: all detention is surely punitive to the person who experiences it. It leads to the bizarre situation that the law provides you more protection if you have committed a crime than if you have not.

It is fundamental in a free society that the law should not allow the state to deprive a person of liberty other than through due judicial process.

What a protection could look like

The Liberal Party proclaims its belief in “the inalienable rights and freedoms of all peoples” and a “just and humane society”. Yet it marked the 800th anniversary of the Magna Carta – the founding document protecting rights in western democracies – by drafting legislationauthorising deprivation of citizenship without the need to go to court.

Labor has been no less resistant to the idea of constitutional rights. The Rudd government’s terms of reference to its inquiry into human rightsspecifically excluded consideration of putting new rights into the Constitution.

Opposition by politicians to constitutional rights is obviously self-serving, and it is often absurd as well. Former NSW premier Bob Carr objected to a Bill of Rights on the ground that it would create a “lawyer’s picnic”.

In a free society, it ought never to be lawful for a government to detain people by executive order alone.

The only effective way to protect liberty of the person is to deny the government the power to detain, unless it can demonstrate to a court that there are reasonable grounds for deprivation of liberty. And the only effective way to prevent the government from enacting legislation to give itself that power is to create a constitutional right protecting freedom of the person.

This right could be phrased as:

Everyone has the right to due process of law and not to be unreasonably deprived of personal liberty.

In a system where the burden appears to lie on the individual to prove they are lawfully in Australia rather than on the state to prove they are not, we are all vulnerable to deprivation of liberty.

The right to individual liberty is also a basic requirement of human dignity. That a person has been deprived of a right by a democratically elected parliament does not diminish the assault on their dignity.

The concept of a free society inescapably requires that limits be imposed on the will of the majority. That is why the power of parliaments has to be restrained.

This is what opponents of rights who trot out the objection to “unelected judges” overturning parliament’s will fail to grasp. It is precisely because judges are independent of the will of political majorities that ultimately only the courts can effectively protect individual freedom.

This article was originally published on The Conversation. Read the original article.

Australia is ill-prepared for its own version of Donald Trump

President Donald Trump is putting enormous strain on the institutions and rules that have made the US democracy such a success. His direct, personal attacks on judges threaten the independence and standing of the judiciary. A willingness to govern by executive order also undermines the role of Congress as the nation's primary lawmaker.

So far, the US system has met these challenges and is holding the new President to his proper role. Courts have not bowed to pressure and have put a stop on his immigration bans. Members of Congress have also pushed back on the President's initiatives, and the media has reported fearlessly on his early days in office.

These events beg the question of how Australia's institutions would respond if we had a Prime Minister and cabinet (our executive branch of government) seeking to follow Trump's lead. The short answer is that we may not fare so well.

QLD Government commits to a Human Rights Act

10 November 2016

Queensland human rights advocates have had many reasons to celebrate this year. The QLD Government has made progress on youth justice, LGBTI rights, reproductive rights and more. Most recently the QLD Government announced plans to introduce a Human Rights Act.

Essentially, a Human Rights Act means that the government need to take human rights into account when making all major decisions that could have an impact on human rights.

A clear voice crying for dignity for our fellow human beings

THE Brennan report should come as no surprise. It has been apparent for many years that there are major problems with human rights protection in Australia. The report catalogues this from the ground up. It is a historic initiative, built on the stories of thousands of Australians from across the nation.

The report should be welcomed for this, as well as for recommending that Australia enact a human rights act.

While human rights problems come to light periodically in the media, the report shows that many Australians live with their rights being breached daily. This includes people in aged care, Aboriginal Australians, people suffering mental illnesses and children with disabilities.

Despite being often avoidable, these problems continue to cause grave distress and harm to those involved. Remedial action is often absent, and may only occur if the story reaches the media and so comes with the possibility of political embarrassment.