Human Rights Act needed because of institutional failures

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I used to be sceptical about a Bill of Rights. I was concerned about judges usurping the role of parliament. There was always a risk I thought that entrenchment of human rights could be used for the protection of property rights.

That is still a risk, but the risk is more than balanced by the need to address major institutional failures of our time – the erosion of accountability in the Westminster parliamentary system, and the even more dramatic institutional failure of the media to expose abuse of power. Neither parliament nor the media are now fulfilling their roles as protectors of the public and in particular our human rights. We are moving to an institutionalised lack of accountability. Further, the judiciary’s role as an independent arbiter is under attack.

The national parliament is increasingly dominated by the executive and party machines. The Clerk of the Senate has described the prime ministership of Australia as ‘an elected monarchy’. Factionalism in the political parties, and particularly the ALP, provides little scope for individual members to make an effective contribution on behalf of the weak and the vulnerable. In some states candidates, and even leaders, are selected not for how they will perform in parliament or in the electorate, but for how they will vote in the caucus.

Ministers and senior officials are no longer really responsible. Gross offences against individuals like Cornelia Rau and Vivienne Alvarez have been committed, but ministers and senior officials sail on. It used to be called the ‘responsible government’. But is any minister responsible any more? Ministers have increasingly hidden behind an unaccountable and growing army of ministerial advisers. In Canberra, they have doubled since 1983 to almost 400.

I believe we have also lost something of the culture of openness, professionalism and courage in our senior federal public servants. The temptations in public life are to remain silent and to want to please. Few senior public servants are held accountable or disciplined. It seems that more often, they are promoted.

Human rights are also prejudiced by the inability of under-resourced journalists to match the media machines of government and business. With a few notable exceptions, the media has gone missing in action. In late 2004, the High Court decided, on the basis of government legislation, that a stateless person who had committed no offence in Australia could be imprisoned indefinitely because no country would accept him. The media practically ignored this gross violation of human rights. The opposition didn’t do its job either.

The well-resourced media minders and PR consultants working on behalf of government and business are usually able now, with spin, dog-whistling and language laundering, to roll over most journalists. It was organizations such as A Just Australia and ChilOut who brought to our attention the inhuman treatment of children in detention.

With under-resourced journalists increasingly fearful of defamation actions, the media is increasingly pre-occupied with voyeurism, celebrity, entertainment and law-and-order. And the story will probably get worse as a result of new cross-media ownership proposals which are likely to indulge the ‘media mates’.

The independent judiciary is also under heavy attack. This is seen most clearly in the immigration and refugee area. There, the government has dramatically reduced the jurisdiction of the federal court, even to the extent of removing ‘denial of natural justice’ as a ground for appealing immigration and refugee decisions; compromised the independence of immigration and refugee tribunals by simply removing those who make decisions critical of government and replacing them with more compliant members; threatening to legislate to make applicants’ legal representatives liable for the costs of proceeding where an application is unsuccessful; and engaging in heavy criticism of any decisions that criticise government action. The government even sought recently to remove the capacity of the High Court to review immigration and refugee decisions. Thankfully, the court found a way to avoid that result. There are many other incidents that could be cited.

Almost every other source of independent, institutional criticism of government has also been the target of hostile political action. The capacity of Human Rights and Equal Opportunity Commissioners has been lessened. HREOC’s budget was slashed by 40% over three years. Changes have been proposed to the Administrative Appeals Tribunal to remove the requirement that its senior members be judges. This would weaken its independence substantially. The criticisms of international human rights bodies are dismissed out of hand. Now student political activity is targeted through the abolition of student union fees.

These institutional failures have occurred at a time when human rights are under severe attack. In the name of ‘border protection’, refugees were demonised and denied their human rights on the grounds that they were a threat to our security. We were encouraged to believe that they were inhuman and not worthy of our compassion. We were told they were illegals, when they weren’t. We were told that they might be terrorists. We were told that they were so inhuman that they would even throw their children overboard. Why should they have any human rights at all?

We are now also facing the erosion of human rights in the name of anti-terrorism. In America, The Patriot Act, Guantanamo Bay and Abu Ghraib ring out like warning bells.

Earlier this year, the Blair Government had to change its anti-terrorism laws following the House of Lords condemnation of proposed changes that breached UK and European Human Rights Laws. In Australia, Muslims are being singled out for discriminatory treatment. The Prime Minister has floated the idea of a national ID card to give more power to the state against the individual. The state premiers have said they are prepared to discuss it.

Anti-terrorism like border protection will lead to an erosion of human rights unless there are safeguards. We have not had a terrorist attack in Australia, but think of the vilification and finger-pointing we will have in this country when there is one. It is troubling that the minister in charge of anti-terrorist legislation is the Attorney General, the same Philip Ruddock, who led us down the path of denying refugees their human rights.

Loss of human rights doesn’t happen suddenly. It happens incrementally. Or, as a former Lord Chief Justice of the United Kingdom, Lord Lane, rather colourfully put it:

‘Oppression does not suddenly stand on the doorstep with a toothbrush moustache and a swastika armband. It happens step by step.’

It is because of these concerns that the Human Rights Act campaign was formed to campaign for a statutory Human Rights Bill in the federal parliament. The group is working hard to launch, sustain and then win the campaign for a better Australia through a Human Rights Bill.

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