Monday, October 10, 2005

A Bill of Rights for Australia?

Via John Quiggin, Australian electronic magazine New Matilda has launched a campaign for an Australian Human Rights Act. As they point out, Australia is pretty much the only western democracy (and certainly the only in the Anglosphere) without such legislation: the US has its Bill of Rights (the first ten amendments to their constitution, and IMHO the only bit that really matters), Canada its Charter of Rights and Freedoms, the UK its Human Rights Act, and New Zealand our very own New Zealand Bill of Rights Act 1990. While each is different, they all guarantee and affirm in their own way the basic rights set out in the International Covenant on Civil and Political Rights: the freedoms of expression, conscience, assembly, association and movement; the rights to life and liberty; the right not to be subjected to torture or cruel and unusual punishment; and the right to a fair trial, due process and natural justice. While these rights are generally respected in Australia, they do not have strong protection in law - meaning that the government can do things like this or this with legal impunity.

Both the (now relaxed) policy of mandatory detention of refugees and the deportation of Scott Parkin are excellent examples of exactly why Australia needs a Bill of Rights. It is difficult to imagine either occurring where the government was obliged to respect fundamental rights and that obligation was enforceable in a court of law.

So what of the draft bill? Firstly, it applies only to the federal government; the states would each have to pass their own bills. Secondly, while it allows the courts to determine that legislation is incompatible, this does not allow such legislation to be overturned. This isn't quite as toothless as it seems; the bill still includes a clause requiring that all legislation be interpreted (insofar as is possible) so as to be compatible with the rights affirmed, and as we've seen in New Zealand, this is a powerful stick for taming government, allowing incompatible laws to be "read down" and effectively gutted (as happened to our legislation against flag burning). And it allows for damages to be awarded - something our courts had to find in common law.

The biggest flaw in the draft is that it attempts to glom in everything - including the "positive rights" of the International Covenant on Economic, Social and Cultural Rights. I'm uneasy about this, not because I don't support those rights (I think they're essential to advancing the goal of substantive freedom), but because I recognise that they're rather more open to interpretation and constrained by practical limitations than the more fundamental rights in the ICCPR. The draft bill recognises this with a clause stating that they are "subject to progressive realisation" and allows the government's financial circumstances to be taken into account in determining how they should be implemented - but this essentially robs them of any real content or enforceability. IMHO it is probably better to enact these rights through specific and detailed legislation, rather than cluttering a constitutional document with empty promises. But OTOH, it is good that they are trying, and I look forward to seeing whether they can make it work.


The South African Constitution includes economic and social rights, including rights to a decent environment, adeqete housing, health care and education. I'll have to look in to how it is implemented...

Posted by Idiot/Savant : 10/10/2005 12:56:00 AM

Despite being only the 52nd largest country by population and the 13th largest economy, Australia suffers from the same exceptionalism as the USA.

So they're unlikely to sign up for a binding internationalised bill of rights - and without a supranational enforcer like the ECHR, codes of rights are liable to be removed or worked around at the first sign of trouble.

Posted by Rich : 10/10/2005 10:20:00 AM

I guess with the SA constitution the "within reasonable resources" comes into play. So a government could argue if any action was taken that there were no resources for better housing, for example.

It would probbaly prevent Mugabe-style (or indeed Redfern-style) evictions though.

Posted by Rich : 10/10/2005 10:27:00 AM

Even with the ECHR, the UK has worked around the Convention. Britain has derogated from part of the ECHR since late 2001 (IIRC). To do so it has had to declare that it is in a 'state of emergency' - long before 7/7/05. The ECHR really is a longstop, and I'm not sure what sanctions there are on countries who fail to comply with the Court's judgments, such as this one:

Posted by Anonymous : 10/10/2005 10:30:00 AM

I suspect the Aussies are much like us in that there is likely to be a certain amount of buy-in from the general public for a Bill of Rights if it reduces the the powers of Canberra. Given the current antipathy between the Labor dominated states and the Liberal dominiated commonwealth government, such a Bill of Rights might be a welcome compromise between further wrangling between the states and the commonwealth... as was the case in the US of course.

Posted by Lewis Holden : 10/12/2005 11:21:00 PM