Putting the country to rights

Today the Federal Attorney-General Robert McClelland released the government’s response to the National Human Rights Consultation, a process which was originally launched in December 2008 and delivered its final report [PDF] to the government on 30th September 2009. It is doubtful that too many people within the human rights lobby are going to be pleased. Recommendation 18 of the report, the adoption of a federal Human Rights Act, has been point blank rejected by the Rudd Government.

The Attorney-General summarises the government’s position on this matter in his Foreword to the government’s response – a so-called National Human Rights Framework:

The Framework does not include a Human Rights Act or Charter. While there is overwhelming support for human rights in our community, many Australians remain concerned about the possible consequences of such an Act. The Government believes that the enhancement of human rights should be done in a way that as far as possible unites, rather than divides, our community. The Government is committed to positive and practical change to promote and protect human rights. Advancing the cause of human rights in Australia would not be served by an approach that is divisive or creates an atmosphere of uncertainty or suspicion in the community.

Personally I am not entirely sold on the idea of a federal Human Rights Act. However, I am somewhat confused by the assertion that the introduction of a national act would be somehow “divisive” or would create an atmosphere of “uncertainty or suspicion”. Surely one could argue quite effectively that the absence of any legal bedrock on human rights in Australia is a fairly considerable source of division and uncertainty? A federal Human Rights Act would lay Australia’s human rights cards on the table for all to see. Presently, is it not the case that Australia’s human rights cards are scattered across the states and territories, indistinct and not clearly defined in any national sense? We seem to be dwelling in an “she’ll be right” environment of implied rights, which works quite well for the white bread majority of us who are in practice unlikely to have their rights impinged, but probably doesn’t hold up so well for those on the fringes. Considering recent developments in indigenous affairs policy, the plight of Aboriginal Australians is a case in point.

The framework document does follow through on some worthwhile measures suggested by the consultation, including the application of a new “human rights test” to new bills passing through parliament. The government has opted for a cop-out as far as the ongoing human debate is concerned however, pledging to review the operation of the framework only in 2014 – a date that seems rather cleverly calculated to fall after not only the forthcoming election but the one after that as well. I guess that’s political code for “we didn’t really want to talk about human rights in this election campaign, and we’re definitely not going to talk about it in the next one”.

All things considered, it’s hard not to view the government’s performance on this issue as rather weak, and the outcome here as an indictment of the Rudd Government’s use of the public consultation as a mechanism for guiding policy. If you’re going to make public consultations part of your modus operandi as a government, you better well make sure that you provide a robust explanation for why you have flatly rejected the recommendations of the people you are consulting.

ELSEWHERE: Kim at Larvatus Prodeo, Andrew Norton, Woolly Days.

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.