It’s time to talk about human rights

One of the most contentious unresolved issues with respect to the Australian Constitution is that no specific aggregate collection of human rights are enshrined within it, unlike several other “high profile” constitutions worldwide (most famously, the United States Bill of Rights). Australian constitutional lawyer Greg Craven sums up the situation quite succinctly (if a little flippantly!) in his excellent book, Conversations with the Constitution (p.165):

No-one can dislike human rights. Rights are the small children and furry animals of a constitutional system, demanding nothing less than constant admiration, unremitting praise and rapt attention. If, as Doctor Johnson remarked, someone tired of London is tired of life, anyone tired of human rights is tired of credibility.

The reality of rights is harder. For all their surface appeal, constitutional rights are as fraught with complication as a Beirut tourist guide.

When it comes to constitutional recognition of human rights in Australia, the primary combatants fall into two broad camps. The first camp seeks the inclusion of a “bill of rights” of sorts in our constitution, and laments the absence of any cohesive collection of legally enshrined rights in the current document. This is probably the popular view amongst the broader left, as exemplified by this editorial in The Age recently, and the work of Professor George Williams. The second camp is concerned that enshrining a series of discrete rights in our constitution is destined to shift decision-making powers on rights from parliament to the judiciary; in essence from an elected body to an unelected body. One of the most prominent bill of rights sceptics in the political sphere is of course former NSW Premier Bob Carr. There is of course a third, rather amorphous camp to consider here; those Australians who don’t really care whether or not human rights are enshrined in the Australian Constitution, and don’t think that doing so is really going to make a significant difference to their lives. At this point in time, this camp is by far the largest camp on the scene, and will probably present the greatest obstacle to any change being instigated in the future.

It is in this environment that the Rudd Government and Attorney-General Robert McLelland has taken the commendable step of kickstarting a new National Human Rights Consultation process on the auspicious occasion of the 60th Anniversary of the Signing of the Universal Declaration of Human Rights. The consultation process is to proceed over a period of some seven months, reporting back to parliament on 31 July 2009, and is to be chaired by Father Frank Brennan, a strong advocate of human rights, but something of a sceptic when it comes to local constitutional enshrinement. His appointment was an exceptionally canny choice from a government no doubt concerned about the repercussions of stacking its consultation committee with people ready and raring to create an Australian Bill of Rights. The other members of the committee are SBS journalist Mary Kostakidis (an Australian bill of rights advocate of sorts), former Australian Federal Police Commissioner Mick Palmer, and young lawyer Tammy Williams.

This is a great opportunity for Australians to get involved with their constitutional democracy and shape the way it is to develop in the coming decades. You can make an online submission to the consultation process here – make sure you do so by 29th May 2009 if you at all care about human rights in Australia.

ELSEWHERE: Kim remarks on the anniversary of the UN Universal Declaration of Human Rights over at Larvatus Prodeo. Andrew Bartlett also has a good post supportive of the consultation process here.

2 thoughts on “It’s time to talk about human rights

  1. From the little I know of him, I’d like to see George Williams in a Labor seat somewhere. He can certainly put forward a cogent argument.

    I don’t have too much of a problem with something like a bill of rights – provided it’s a simple piece of legislation that can be amended. Keep in mind, though, that progressives could be hindered by such legislation, too. Though listening to Bob Carr on this, I really feel for those who served in cabinet with him – he dismisses every argument he disagrees with as “absurd”.

    It might be a bit parochial, but I’d like to see the right to be represented by a union in a charter of rights. I was disappointed during the YRAW campaign that many lawyers concerned with human rights when it came to terrorism laws and refugees didn’t seem to care that much about Star Chamber techniques being used against members of unions.

  2. Yeah – I agree there – it would be good to see George Williams in parliament.

    Although I am a little adrift as to some of the legal machinations, the problem with a legislated bill of rights federally (as opposed to a constitutional bill) would be that it would be more open to political manipulation. The next time, for example, a conservative government took office, it could act to amend the legislation without the explicit support of the Australian people. I am not sure rights are things that should be tampered with from government to government. They should be pretty static, and the constitution is pretty much the most static legal instrument our political system has.

    On this score I tend to think that if we are going to have a federal bill of rights, we may as well do it properly and enshrine it in the constitution. Of course this means that enough national support for the bill is going to have to be mustered such that the resulting referendum actually passes, but I guess that’s part and parcel of working within a democratic society.

    I’d agree on the right to be represented by a union – but I guess with the current state of our IR laws, that right would be undermined from day one anyway with respect to small business – unless those laws were revisited.

Comments are closed.