What’s the issue?
Each and every human being has fundamental rights and freedoms. The right to life, the right to liberty of person, freedom of speech and freedom from slavery and torture are just a few examples of universal human rights that belong to everyone regardless of differences in gender, religion, nationality, ethnicity or culture.
These rights and freedoms have been recognised under, and are protected by, international law. The International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic Social and Cultural Rights (ICESCR) were both created in 1966 to carry out this function, and together make up the International Bill of Rights. Countries that sign this international bill make a commitment to protect the rights and freedoms of the people within its own borders.
Australia, despite having signed these treaties, remains the only western democratic country that has not honoured these international human rights obligations. It stands apart from the UK, New Zealand, Canada, South Africa and the USA who have all created a national human rights act or the equivalent.
In light of this failure, the hot debate at the moment is whether or not Australia needs a national bill of rights; a debate that begs the question of whether on the one hand, Australian law adequately protects our human rights, or whether on the other, in not having a bill of rights, these fundamental rights are at risk of being violated.
Arguments for a bill of rights
Advocates for a bill of rights argue that Australian law as it currently stands does not adequately protect even the most fundamental human rights that most people assume they have.
They say the rights that Australian’s do have are few, and that many of these are weak and can easily be taken away by the government at any time.
So what rights are protected by Australian law?
The Australian Constitution protects very few rights, and those rights that are protected are very limited in their scope.
- Section 80 guarantees trial by jury, but this only applies to trials at the federal level.
- Section 116 protects freedom of religion, however once again protection only applies at the federal level, leaving the states free to pass any law that restricts religion in any way.
- On its face Section 41 guarantees the right to vote. However, in reality, the High Court has ruled this section as inoperative.
- Section 92 protects freedom of trade between states and territories
- Section 51(xxxi) guarantees that property is only acquired by the state on just terms.
- The Constitution has also been found to protect the implied freedom of political communication.
Protection under legislation
Some human rights are protected by federal, state and territory anti-discrimination legislation, which make it unlawful to discriminate on the basis of sex, race and disability. Although they provide Australian’s with a measure of protection, this protection is very unstable, as the Parliament has the power to make new laws that limit or even take away these rights.
Arguments against a bill of rights
Despite this very limited protection, some people argue against the introduction of an Australian bill of rights. The most common argument is that the democratic traditions and institutions of Australia already provide us with adequate rights protection, a situation that makes the introduction of a human rights bill, an unnecessary addition. It is claimed that our system of responsible and representative government imposes enough checks and balances on those in power, to ensure that human rights are respected and observed.
A further argument is that the introduction of a bill of rights would be undemocratic. Many people are concerned that allowing people to take human rights claims to the courts, will transfer too much power from the democratically elected parliament, to an unelected and unaccountable judiciary.
A final belief is that a national bill of rights will not protect, but will rather limit human rights protection. It is argued that defining human rights in a national document, will encourage the courts to adopt a narrow interpretation of these rights, and that it will freeze rights in the time in which they were created, making them incapable of responding to the ever-changing needs and concerns of the Australian community.
What is being done about human rights protection in Australia?
In October 2005, New Matilda—a national policy group—launched the National Human Rights Act Campaign to change very limited rights protection that is provided by Australian law.
They have developed a draft Human Rights Bill for Australia that protects our fundamental rights and freedoms against violation by the state. This campaign aims to present a final Human Rights Bill to federal parliament by the end of 2006, and so in the meantime invites all Australians to offer their opinions and suggestions on this first draft. To find out more go to
http://www.newmatilda.com.au.
