Prosperity with purpose - a fresh approach to some unfinished business

Australia has experienced unprecedented prosperity over the last decade. Yet many Australians have a nagging sense that something vital is missing.

The structural economic reforms, especially those of the 80s and early 90s, certainly produced an economy of abundance, but has there has been sufficient purpose to this prosperity?

There is an overt and growing concern about lack of investment in the economic infrastructures underpinning wealth creation - often manifested in debates over the capacity constraints increasingly emerging with water, energy, transport and telecommunications.

Alongside these concerns over physical capital there are doubts that we are investing sufficiently in core elements of our social and public infrastructure of education, health and welfare.

Take education: even after nearly 15 years of sustained and low inflation economic growth, Australia is now the only country in the OECD where there is a decline in per capita expenditure on higher education. It's not hard for even the most comfortable and relaxed Australian to wonder how the nation will continue to compete in the future in an increasingly globalised economy where a premium will be paid for ideas and intellectual services.

Or health: over the last decade government has risk-shifted health costs on to the individual consumer. Certainly that’s a boon for the private health insurance industry, but Australians appreciate the universal and more cost-effective benefits of Medicare, and are all too conscious of the rising costs they are paying for health insurance and that their individual health care is now very much more dependent upon their individual cash-flow. There is an appreciation that future health care will be benchmarked by our wealth and earning capacity.

And underlying these more obvious debates, there's a sense that we also need to invest more substantially in the institutions of civic society which provide the fundamental foundations of our social cohesion.

The recent emergence of the “values” debate in many countries, including Australia, is a reflection of a public desire to engage with this issue.

But "values" as such is an empty vessel. To some, it’s a way of promoting harshly defined viewpoints aimed at preserving a conservative status quo, or just a faulty memory of happier times.

We’ve seen it used by neo-liberals and conservatives in areas such as “family values”, education, and most recently in the context of debates over citizenship and multiculturalism.

Yet overseas, professed social democrats such as the putative British PM, Gordon Brown, and philosophers such as Canadian John Ralston Saul, see “values” as a very productive foundation for their visions of a greatly enhanced and inclusive democracy and a greater sense of positive global citizenship.

We don’t intend to allow the so-called values debate to be the sole preserve of the entrepreneurs of division, but are seeking ways to contest this space in the name of the many values Australians generally proclaim to be the basis of their ethos: the “fair go”, tolerance, equality of opportunity, rule of law, social justice.

Public surveys clearly reflect an increasing desire for greater vision among our political class, and a re-energising of debate on more fundamental concerns. While there may be a grudging acceptance of the supposed “practical” solutions being offered by government, the community senses that there is a missing ingredient to these solutions: solutions which may provide short-term comfort but miss the critical sense of our overriding obligations to future generations.

The issue now is to ensure that, in the current debates, critical and long-lasting principles which give support to our essential freedoms are not compromised by a public policy process driven by short-term political opportunism. For policies to be effective in both the short and longer term, to be genuinely sustainable, they need to respect and reflect our national values.

In many democratic societies a nation’s values are reflected in its constitution, which seeks to embody fundamental norms and principles. Many other nations have developed comprehensive architecture in this area, but here Australia has shown a singular lack of intent or purpose.

The most obvious and glaring gap in Australia’s civic architecture has been its lack of a bill of rights or an equivalent, which gives clear testimony and legal foundation to the professed Aussie values summed up in the concept of a fair go. There was a half-hearted attempt at incorporating selected basic rights in a referendum in 1988, which failed, but frankly for many Australians, even as recent as it is, 1988 isn’t so much ancient history - its pre-website, and hence non-history.

Even in liberal democracies like Australia, being different - being other - is to be vulnerable. It is a characteristic common to those most in need of protection. Governments live to win elections and to be seen to be doing what is popular. The challenge for governments is to take up the cause of, to fight for and to protect the rights of those who are perceived, for whatever reason, as different and whose claim to rights protections attracts little or no popular support.

At certain times in the political cycle, generally after a grave crisis, a high-mindedness can enter public policy, requiring the enactment and legislative protection of higher standards of civic behaviour. Australia has missed a number opportunities for the sort of high-mindedness that has led most western democracies to implement human rights charters.

For example, while Canada adopted a Charter of Rights and Freedoms, Australia settled for an advisory, report-writing Human Rights Commission with few if any powers to effectively protect human rights in this country.

Australia is not alone in having blurred the distinction between its executive and the legislature. The party system has blurred this distinction elsewhere, too. But this country is alone in its relegation of the third arm of government, the judiciary, to such a minor role in human rights protection. By not incorporating human rights standards into overarching law, and indeed by prohibiting courts from reviewing the merits of many government decisions, there remain few remedies against executive excesses.

So it’s certainly a welcome initiative to see campaigns still seeking to keep alive a public debate over why a bill or charter of rights and responsibilities is such a necessary and vital component for our democratic system.

One such campaign has recently been commenced by New Matilda magazine, and it comes at a time when the absence of effective human rights protections in Australia is critical. The differences between our human rights record and that of other developed nations are becoming starker.

We have continued to deprive Indigenous children of adequate health care and effective education. Our courts have upheld the long-term indefinite detention of asylum seekers, including that of children. We have kept two Iraqis in indefinite detention. One has languished in a remote island detention centre for five years while one remains in hospital as a result of injuries arising from his indefinite island detention.

We have adopted the “anti-terror” legal frameworks of Britain and America without adopting their human rights protections. And the “war on terror” is still just warming up, there’s plenty more dividends there yet for the entrepreneurs of division.

New Matilda’s draft “Human Rights Act” (“the Act”) project is, in this context, a welcome initiative. It is, however, one that continues to falter, not just because it emerges from such a narrow base, subscribers to an e-zine, but because its premises are themselves faulty.

While the Act’s preamble and objects describe an intent to “respect, protect and promote” human rights, the weakness of its protections means that human rights are really only acknowledged, not protected. At best, their protection is encouraged. While human rights may well be respected and promoted through this Act, any meaningful - or effective - protection is not afforded against other legislation that is incompatible with the Act.

The Act provides mechanisms to assist parliament in considering - or even reconsidering - the implications of legislation, but do not require that parliament ensures that legislation adheres to the various human rights protections it purports to have established.

The attorney-general would be obliged only to assess legislation and report to parliament in respect of its compatibility - or incompatibility - with the Act, with a joint parliamentary standing committee to review, consider and report on matters arising from the Act. Any failure to comply with respect to the attorney-general’s compatibility statements or with respect to the joint committee’s reporting obligations does not affect the validity of any Commonwealth law. This means that even these weak provisions are not binding. Nor is there any incentive on the part of government or parliament to ensure that any proposed legislation meets the human rights provisions under this Act.

Courts would only be required to interpret legislation in ways that are compatible with human rights “so far as it is possible” and the validity of any incompatible legislation would remain unaffected.

One of the objects is to provide for a just and appropriate remedy where a public authority - such as a Commonwealth government authority - has infringed an individual’s human rights. However, the Act indicates that any remedy would only apply to an action (or proposed action) that is unlawful. Given that parliament is not compelled to ensure that it passes legislation compatible with the Act, it is possible that such an action (or proposed action) may well infringe human rights under this Act and may nevertheless be entirely lawful.

Certain acts or failures to act by public authorities are rendered unlawful, but not if the authority relies on primary legislation to argue that it could not have acted differently.

Nor does New Matilda look at the contemporary practice of “extraterritorialising” human rights abuse. Its Act purports to protect the rights of everyone within Australia’s jurisdiction. What about detainees held by Australia in other jurisdictions, such as Nauru? What about Australians overseas - such as AFP officers - performing duties outside its jurisdiction? What about in international waters remembering, for example, the Tampa incident? One must also look to the current practice of excluding parts of Australia from application of laws, or excluding “aliens” from basic standards made for citizens.

Despite its flaws, there are some who support the New Matilda initiative because it is there. With various human rights violations going unchecked, the old Yes Prime Minister logic is attractive: “Something must be done. This is something. Therefore we must do it.”

In certain circles, it is almost impolite to say that one would be disappointed if this human rights act in its current form were ever to see the light of legislative day. But it nevertheless would be disappointing because the Act fails, in material respects, to do what it purports to achieve. It fails to provide effective human rights protection in Australia.

As many opponents of such legislative human rights protections point out, for most Australians, there is little need for them. This Act may indeed work for most Australians, but that simply misses the point. Human rights protections are measured most importantly by what they offer those whose rights are neither popular nor mainstream. In essence, a Human Rights Act should be a means by which a set of standards is established, and from which flows judicial review. It should provide remedies and protections when executive government or legislators find it convenient or popular to abandon such standards.

In relying on governments to act honourably and take into account human rights protections when they do not have to, we must address the real dilemma that arises when such protections are seen to be unpopular, if not irrelevant. And it is precisely because people are marginalised and different that their human rights require protection. Otherness - difference - accounts for many of those in our society most urgently requiring human rights protections including Indigenous Australians, refugees, disabled people, gays and lesbians and people who hold unpopular or little understood religious beliefs.

Some also argue that we will not get effective human rights protection until we experience the sorts of political or social crises that have occurred in other countries. And it does appear that the relatively benign experience of government for most Australians has had a somewhat soporific effect on policy-making and political response. But how long will we maintain our wilful blindness to the plight of our fellow human beings whose experience of this “benign neglect” is devastating, if not fatal?

A while longer yet, it would appear.

Initiatives like that of New Matilda are failing to galvanise the community. When there is so little political support for human rights, one approach is to try and slip in a modest proposal, and call it an advance.

But modest approaches have the tendency to encourage an apathy whereby people believe that an issue has been addressed. Such issues, though, can remain an open wound in our society for an age, masking a deep absence. For example, even in respect of some relatively popular human rights issues in Australia, such as those affecting women, protection has not been absolute or even, in some cases, adequate. The exemptions from protection under the 1984 Sex Discrimination Act, made for reasons of political compromise and expediency, remain with us as employees of government-funded independent schools can testify.

Timidity rarely inspires. The compromised model of republican reform, like the compromised past rights referendum, did not contain enough excitement or benefit to overcome the doubts about the value of change.

A better approach is to work on longer-term solutions and try to build some support from a wide range of sectors for more fundamental reform. Fortunately, we have strong and effective models from many other western democracies from which we can learn and borrow.

Many Australians are looking for reassurance that we can be a nation where all - irrespective of gender, sexual orientation, religion, colour, or disability - can help shape a democratic, open, fair and pluralistic society of the future.

We believe that a commitment to these positive values will demonstrably improve the quality of our Australian way of life, and address those long running problems that damage real people, and our national self-regard.

In the lead up to the next federal election and beyond we have an active debate about values, which will broaden the range of people that want to address these issues. As the election of new leadership in the Labor party indicates, there is a desire for more than more of the same. We need to ensure that deep consideration of the issues that Australia faces over the long term is reflected in civic infrastructure, and we need to build alliances to ensure that the big issues are addressed.