The development of human rights protection in Australia has been characterised by opacity and timidity. Advances in the recognition and protection of individual rights have often been greeted with hostility, as demonstrated by the reaction to
the High Court’s so-called ‘judicial activism’ and the reluctance to incorporate international human rights instruments which Australia has signed, into domestic law. As a consequence, Australians have limited avenues for recourse in the
event of abuse.
At the 1998 Constitutional Convention, some delegates were successful in ensuring the preamble was debated, but time constraints forced other issues of constitutional change, including a Bill of Rights, to a second Convention, to be held
within three to five years of the establishment of a republic.
Of course, with the unfortunate defeat of the republic referendum last year, this timeline has evaporated, but with such strong advocates as George Williams, hopefully we will not have to wait long for a vote on a Bill of Rights.
In the meantime, Australians are reliant on other sources of domestic rights protection, such as international law. The international community has become increasingly concerned with the protection of fundamental human rights, and has
developed instruments and institutions to achieve that aim. The Universal Declaration of Human Rights has acquired the status of customary international law, and has been referred to by the High Court, most notably in the case of Mabo v
While the Australian Federal Parliament has demonstrated willingness to incorporate international law into domestic law through specific enactment of various provisions, particularly in the areas of anti-discrimination legislation, the tide
appears to be running the other way, in light of decisions by the Prime Minister to override the decision of the Federal Court to allow single women access to IVF technology.
Professor Hilary Charlesworth addresses many of the issues of women’s rights in her feminist analysis of international law. In the aftermath of Australia’s withdrawal from UN Committees, and the failure of the Australian Government to sign
the Optional Protocol to CEDAW (and its subsequent loss due to insufficient signatures), her considered analysis of the state of play in the international arena should provide additional ammunition for women in Australia and across the world
seeking greater protection for their rights at both the domestic and international levels. The Beijing +5 Conference in New York this year, which I attended, but most definitely not as a member of the official delegation – the Minister having
effectively barred me from the Session, showed how far most nations have to go before women are afforded sufficient, let alone equal protection and opportunities as men.
Just as further protection is required, so too must we be aware of the limits of the law, and where regulation and interference may be inappropriate. I warmly endorse the analysis by John Seymour in his book Childbirth and the Law, that
legal intervention against the mother to protect the foetus is inappropriate – a principle which I hope prevails in the aftermath of the US elections, with upcoming Supreme Court appointments likely to influence the integrity of the Roe v
Wade decision on access to abortion.
As in the US, when it comes to human rights protection in Australia, it is clear that the Parliament giveth, and the Parliament taketh away.
If this trend continues, it reflects the inability of Australian jurisprudence to offer certainty to those seeking redress for rights abuses. A stark example of this deficiency was the case of Kruger & Ors v The Commonwealth of
Australia in which members of the Stolen Generation argued that the legislation which authorised their removal from their Aboriginal families was unconstitutional. The finding of the Court that genocide had not taken place was a consideration
of whether an implied constitutional prohibition on genocide exists.
Without a comprehensive domestic charter of rights and freedoms, to prohibit such rights abuses as genocide, complainants have only the uncertain and patchy regime of common law and legislation, both subject to parliamentary discretion.
The main arguments for an entrenched Bill of Rights are that:
- Australian law offers inadequate protection to fundamental freedoms;
- It would give recognition to certain universal rights;
- It would give power of action to Australians who are otherwise powerless;
- It would bring Australia into line with the rest of the world;
- It would meet Australia’s international obligations;
- It would enhance Australian democracy by protecting the rights of minorities;
- It would put rights above politics;
- It would improve Government policy-making and administrative decision-making;
- It would serve an important educative function; and
- It would promote tolerance and understanding in the community.
This is an abridged version of a speech given to the Centre for International and Public Law ANU Law Faculty 5.45 for 6PM, Tuesday, 14 November 2000.
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