Opinion Pieces - Protecting Australians' rights (2008)

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Protecting Australians' rights

Author: Graeme Innes AM, Human Rights Commissioner

Publication: On Line Opinion (Mon 28 April 2008)

The new century has thrown up enormous challenges, as well as breathtaking opportunities to us all. One such challenge is the protection of human rights.

We have the opportunity to establish a federal Charter of Rights which could incorporate our international obligations into Australian law, thereby protecting the fundamental human rights of people in this country. This is an opportunity all Australians should embrace.

Yet this debate rarely extends beyond the converted and the dissenters because many Australians erroneously assume that the Constitution protects fundamental rights and freedoms such as the right to life or freedom from torture.

It does not.

Australia's governance system does not adequately protect human rights. Though the Australian government has agreed to many international human rights treaties, it has not fully incorporated them into Australian law.

This means that victims of human rights violations in Australia are often left without an enforceable remedy. Numerous high profile examples highlight the need for a federal Charter of Rights.

In Australia our news is full of stories about the housing crisis, people being forced onto the streets and the shameful rise in homelessness. It is becoming more apparent to all of us just how easily a person could find themselves living on the streets.

Yet people experiencing homelessness, like all of us, have human rights, and many of these rights are breached on a daily basis. Their right to an adequate standard of living (including shelter, food and clothing), to physical and mental health care and to education are major rights that are often breached. For homeless people, the right to personal security is very often under threat. Homeless people also have the right to vote, though this is often impeded because they may not carry identification and have no fixed address.

These are rights we take for granted that these people often do not enjoy.

Over the last decade we have witnessed children spend years in immigration detention in Australia. Many of these children have suffered serious mental and physical health problems as a result of prolonged detention. Many were not able to go to school. Many witnessed violence and some tried to harm themselves in their despair.

The fundamental rights of these children (to health, education and safety) were breached.

We are well aware that there is a 17-year life expectancy gap between Indigenous and non-Indigenous Australians. This is partly due to inadequate legal protection of the rights of Indigenous Australians. These are fundamental rights such as the right to an adequate standard of health, education and housing.

The 21st century has brought the threat of terrorism, which once seemed to be a problem restricted to foreign countries, to our own shores.

With this development has come a raft of new laws that attempt to grapple with the heightened threat to our national security by increasing a range of police and security powers. Among them are powers that enable police to stop, question, and search any person within a prescribed security zone - even if they don't suspect that person has committed or is planning to commit a crime.

A prescribed security zone can be anything from a park or city block to an entire city. Clearly there is the potential for any of us within such a zone to have our human rights breached.

Such laws, if necessary, need to comply with Australia’s international human rights obligations.

In each of these situations, Australia's traditional legal and political structures provide little protection for the people involved.
A federal Charter of Rights should fill the gaps in Australia's current system of human rights protection and should be based on the needs and concerns of all Australians.

The Human Rights and Equal Opportunity Commission made a submission to the Australia 2020 Summit in which we call for a federal Charter of Rights.

The federal government has stated its intention to initiate a public Inquiry about the best way to protect human rights and freedoms in Australia. It is vital that such an Inquiry be a community-based process that includes Australians from all walks of life, including those who are isolated or disadvantaged.

A national Inquiry would offer a valuable opportunity for Australians to engage with each other and with their government. Such an Inquiry would allow Australians to have their say about which human rights should be protected by Australian law, what remedies should be available for human rights breaches and what role human rights should play in governmental processes.

Under a Charter of Rights the government should be required to take a proactive approach to preventing human rights problems. Parliament should be required to consider whether laws comply with human rights. Federal courts should be able to identify laws which do not comply with human rights.

And all-importantly, a Charter should provide accessible and appropriate remedies to individuals for human rights breaches.

An Inquiry should also be charged to fully explore the complex legal issues raised within the Charter debate. The debate raises some important questions such as the extent of judicial power under a Charter. There are alternative points of view on these questions and they need to be fully explored.

I often hear the argument against a federal Charter of Rights that human rights are already adequately protected in Australia. As I have illustrated, people who can't see the gaps in rights protection just aren't looking.

Australia is the only democratic nation without a Charter of Rights.

Yet opponents of a Charter of Rights say that Australia is different to countries which introduced charters after periods of conflict or in response to the growing influence of European human rights law.

That is not the point.

The point is that, like all other countries, people in Australia have human rights. And like people in all other democratic nations, our human rights should be protected and respected.