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Charting a Fairer and more Tolerant Society: Australia must Draw on its Impressive Past and Promote rather than Reject Human Rights Charters

AIH399 MAKING HISTORY
DEAKIN UNIVERSITY

by Jacqueline Fumberger

Executive summary

  • This article considers the present approach by Australia in the protection and promotion of human rights by using the examples of the Victorian Government’s criticism of the Charter of Human Rights and Responsibilities Act 2006 (Vic), with the recent recommendation from the Scrutiny of Acts and Regulations Committee to repeal it, and also the Federal Government’s refusal to implement the key recommendation of the Brennan Committee in 2009 to enact a Federal Human Rights Act.
  • These two instances in which Australia has shown a distinct lack of commitment to creating a human rights culture are used to compare the approaches taken by Australia today and back in the 1940s, a time when Australia was a founding member of the UN and it played a vital role in drafting the UN Charter and UDHR through delegates ‘Doc’ Evatt and Colonel Hodgson, and even championed a binding international human rights instrument.
  • Differences reveal that, after the Second World War when the devastation and impact of human rights violations were fresh in our minds, Australia was committed to ensuring human rights were upheld in a concrete fashion. Today, however, the atrocities of the Second World War are a fading memory and, as the majority of citizens in our country have never experienced having their basic freedoms violated, we have begun to view Charters in a different light.
  • The article’s key argument is that the reason Australia does not have a human rights Charter in force, and instead sees these instruments as ‘dangerous’, is because unlike other countries we have been fortunate to be free from civil and world war, poverty, revolution or any other type of atrocious human rights breaches, and thus do not appreciate the true importance attached to defined rights.
  • This article concludes by provoking the reader to think about why Charters were originally needed and created, asking whether Australia really is denying a Charter for the right reasons.

Australia is the only western democracy in the world not to have a national human rights instrument, such as a Bill or Charter of Rights, employed in our legal system. As such, we are out of step with fellow advanced legal systems such as the UK, Canada, the US, and across Europe. The past decade has seen the ACT (in 2004) and Victoria (in 2006) pass human rights instruments through their respective parliaments, making them the first Australian territory and state respectively to have specific human rights legislation. Nonetheless, these Acts have not been spared from their share of resistance or criticism. This is especially true recently for Victoria’s Charter, as 2011 marks it being in operation for four years, which, as stipulated under s 44 of the Charter, requires a mandatory review of the effectiveness of its operation and a recommendation made about its future to be laid before the state parliament on or before 1 October 2011. The review has now been completed by the Scrutiny of Acts and Regulations Committee, who draws its members from both the lower and upper houses, and it was tabled to parliament on 14 September 2011. The Coalition, as the current Victorian government, held the majority argument in the review and recommended to parliament three options, of which two will effectively weaken its operation while the third would repeal the Charter altogether. If any of these recommendations are implemented, Victoria will become the first democratic society in the world to weaken or repeal a human rights instrument. The argument supporting the repeal, put forward by Victoria’s Attorney General Robert Clark, is predicated on the Charter’s ability to lend itself to misuse, which cause delays in court and ultimately wastes tax-payers’ money. These claims have gone unsubstantiated, however, with many producing figures to show that the principal aims and purposes of the Charter have been achieved, as it is being used to create a human rights culture from which against rights can be measured.

In the continued absence of a national human rights Charter or Bill in Australia, there have been attempts in the past to encourage the federal government to consider adopting one. The most recent attempt was the 2009 investigation into the scope and effectiveness of Australia’s human rights protection and promotion, undertaken by the National Human Rights Consultation and conducted by an independent Committee chaired by Father Frank Brennan. The Committee presented its report (known as the ‘Brennan Report’) to Canberra on 30 September 2009, with the most notable recommendation being the adoption of a national Human Rights Act. Yet, notwithstanding the views and submissions of the Committee, and despite the success of the human rights instruments at state and territory level, the federal government did not implement the key recommendation of the Brennan Report in the new Human Rights Framework. The reason given by Federal Attorney General Robert McClelland was that there is concern amongst the Australian community regarding the effects and consequences that such an Act could incur. As such, he stated that the Australian Human Rights Framework would focus on strengthening the education of human rights in Australia, so as to unite rather than divide our community.

Domestic opponents of Charters or Bills of Rights seem to ignore the fact that we are the only western democracy in the world without a human rights instrument. This is partially because the Australian legal system has a ‘patchwork quilt’ of human rights protection in normal legislation, treaties, the common law and also some protection in our Constitution. Thus, being out of step with other countries does not automatically mean we are doing anything wrong. Nonetheless, although being out of step does not necessarily correlate with being a bad thing, it is often wise to reflect on the past to gain an insight into what Australia’s position has been in the past with human rights, where the general desire for promotion and protection of human rights originated from, and why this history has caused so many sophisticated countries to adopt an instrument that Australia today chooses to avoid.

To view a full picture of the relevant human rights history requires going back to the beginning of the twentieth century, when awareness and necessity for rights protection arose as a consequence from experiences of either being subjected to atrocities or violations, or from witnessing others’ rights and freedoms being violated. The repercussions and devastations of war inspired commitment to human rights protection after the First World War when, in 1919, the League of Nations was established under the Treaty of Versailles with the aim of ‘promoting international cooperation and to achieve peace and security’. Members of the League had experienced or witnessed the carnage, destruction and disregard for human rights that war can bring. As such, the League was concerned with ensuring that no wars would breakout again, with their Covenant stipulating that in order to safeguard peace they would take action against any future threat or act of war. Despite this, however, in the 1920s and 1930s totalitarian (fascist and communist) governments were expanding and gaining strength across Europe in Germany, Italy, Spain, and the Soviet Union, while the threat of imperialist Japan hovered over Asia. This eventually led to Japan moving in on China, Italy seizing Ethiopia, and Francisco Franco rising to power in Spain. Moreover, Nazi Germany’s expansionist foreign policy and territorial gains (effectively in revocation of Versailles) as well as Stalin’s increasing stranglehold indicated that totalitarianism was prevailing, and progress toward international peace and cooperation was futile. As such, the outbreak of the Second World War meant that the League of Nations’ endeavours to prevent war and uphold peace had failed spectacularly, and it consequently disbanded. Although the League had attempted to address human rights concerns, at that stage it was generally accepted that human rights issues were a sovereign matter to be addressed by domestic authorities. It was not until the tremors of WWII had been felt that human rights violations were regarded as within the international realm. It was against this backdrop that the United Nations (UN) found its genesis.

The UN was the first body set up to ensure the international protection and promotion of the human rights of all persons without distinction as to race, sex, language or religion. The assembly of this body was directly responding to the horrors and abuses exhibited in the Second World War. US President Franklin D. Roosevelt first made use of the term ‘United Nations’ on 1 January 1942 in reference to representatives from 26 nations from around the world who had committed their countries and governments to fight against the Axis Powers led by Germany, Italy, and Japan. Previously, in 1941, FDR had spoken of four freedoms as being essential for the development of peace and progression forward: freedom of speech; freedom of belief; freedom from fear; and freedom from want. These four freedoms became key notions underpinning peace negotiations, and were even quoted in the Australian federal parliament as integral to postwar redevelopment endeavours. At this time, then, there was developing recognition that international commitment to protecting and promoting human rights would be a touchstone in building a better, and more peaceful, future for the world.

The UN formally came into existence once the Charter was drawn up and ratified by 51 countries on 24 October 1945, with Australia a founding member. In fact, Australia took a lead role in negotiations regarding the Charter through the representation of its delegate ‘Doc’ Evatt. Evatt was a former High Court Judge and became involved in politics under John Curtain’s wartime Labor government, being appointed as the Attorney General and Minister for External Affairs. Through his active involvement in developing the Charter, Evatt pushed for the support of the rights of smaller nations to be included. Due to his passion and commitment, the Charter was wider in scope than first envisaged, including provisions intended for the poor, the weak, and the oppressed. Evatt also championed for the Charter to cover civil and political rights, which was met with much resistance due to the ideological conflict between East and West during the early onset of the Cold War. With Evatt’s involvement—and by extension Australia’s, too—the UN Charter sought to protect and fight the ‘scourge of war’ by ensuring the promotion of ‘fundamental human rights’ for all people. Yet, it did not include a Bill of Rights to this effect. Through the negotiations of the Charter, Evatt demonstrated his strong support for either the inclusion of a Bill of Rights instrument in the Charter, or the adoption of a separate one, so as to provide a cemented foundation for an international human rights culture. It was eventually decided that a separate Bill of Rights instrument would be created.

In 1946, the Economic and Social Council (ECOSOC), formed under the UN Charter, established the Commission of Human Rights to construct an international Bill of Rights. This Commission was chaired by Eleanor Roosevelt of the US and comprised of representatives from a further eight countries of China, Lebanon, France, Chile, Soviet Union, United Kingdom, Canada and Australia. In the beginning, there was difficulty in deciding whether the Bill of Rights should be a Declaration, to act as a recommendation from the General Assembly to Member States of the UN, or whether it should be a binding instrument on Member States that they would need to ratify. The representative from Australia, Colonel Hodgson, argued for the Bill to have a binding effect so that it could be enforced through an international court. The ultimate agreement reached, however, was that it should be a Declaration. The draft Declaration formed by the Committee was put to the UN’s General Assembly. With 48 nations voting in favour of its adoption and eight abstaining, on 10 December 1948 it was adopted as the Universal Declaration of Human Rights (UDHR). This was the same year that ‘Doc’ Evatt was elected as President of the General Assembly of the UN, and was thus presiding over the official adoption of the UDHR. On the day of the UDHR’s adoption, Evatt enthusiastically welcomed it as a ‘step forward in the great evolutionary process’, already looking ahead to developing a human rights treaty that would have a binding legal effect on those party to it. This moment can be heralded, as Annemarie Devereux puts it, as the ‘first step’ in Australia’s human rights journey.

Jumping from those great historical moments and our stance on human rights 63 years ago ahead to the present day in 2011, it is incredible to reflect upon the complete 180-degree change of attitude Australia has taken with respect to human rights Charters. In the 1940s, when the devastating impact of human rights violations was still fresh in our minds, we played a leading role in establishing a body to protect and promote human rights, we played a significant role in the creation of a Charter that upholds the rights of people all over the world, we were one of the few countries who had a hand in drafting a Declaration that provides a concrete foundation of rights from which standards can be measured, and we were even petitioning for a binding human rights treaty on Member States of the UN. Today, however, when the atrocities of the Second World War seem but a distant memory, we see danger in adopting a national human rights Charter, and dismiss functional and successful Charters as undemocratic and a waste of money. We say this even though we are the only western democracy without a national Bill of Rights. Here the question that unavoidably arises is why has Australia adopted this position? Arguably, there are differing factors that could be attributed to this change of stance, such as the political climate emanating from the Cold War or the different constitutional structures of each country. Even so, it seems that the standout disparagement between Australia and other western countries with Charters of rights is that they have directly witnessed and experienced horrendous human rights violations, or they have been ravaged by world wars or civil wars, or they have had their worlds upset by revolutions or invasions from foreign oppressors. Whereas in Australia, any such terrible human rights atrocities would only seem to have occurred to minorities such as Indigenous Australians, refugees or asylum seekers. As this bares comparatively little impact on the complacent majority, the importance of having human rights carved out and emphasised has been reviewed as a risk.

The reality, however, is that human rights violations still are occurring in Australia today, ranging from human rights breaches in detention centres, sexual and physical abuse violations, and the mistreatment and gap between non-Indigenous and Indigenous Australians. Canberra seems to think that these problems can be solved via our existing laws through legislation, the common law and international treaties. Yet, these problems are recurring and damaging to the people they affect. Of course, this is not to say that enacting a national Charter will do away with all injustices experienced in Australia. But it is a crucial step towards building a concrete human rights culture, and it would follow on from that first step that ‘Doc’ Evatt so bravely and proudly took back in 1948. We should learn from the mistakes of the past, and ensure that we uphold rights in the present and future, just as we championed them in the 1940s.

It seems that Australia has forgotten its impressive past, and ultimately ignores the reasons why protective instruments such as Charters and Bills of Rights were created in the first place. Although we are fortunate to live in a country where the majority of people have not had their barest and most fundamental human freedoms denied, we are also simultaneously stunted by this, as we see legislative tools such as Charters designed to hinder and divide our community, rather than protect and promote our liberty. Earlier this article acknowledged that, although we are out of step with the rest of the western world by not having a Charter or Bill of Rights, this is not necessarily a bad thing. To evaluate the accuracy of that statement, however, Australians need to look at our past to reflect on why these instruments exist in the first place, and realise that we were committed for the right reasons back then, but are we opposed for the right reasons now?

Selected further reading:

Australia’s Human Rights Framework available at:
http://www.ema.gov.au/www/agd/rwpattach.nsf/VAP/(3A6790B96C927794AF1031D9395C5C20)~Human+Rights+Framework.pdf/$file/Human+Rights+Framework.pdf

Burnside, J, Its time. A Bill of Rights for Australia, available at:
http://www.unisa.edu.au/hawkecentre/events/2008events/IHRD_JulianBurnside_FINAL.pdf

Devereux, A, Australia and the Birth of the International Bill of Human Rights 1946-1966, The Federation Press, Sydney, 2005.
Human Rights Consultation Committee Report available at: http://www.humanrightsconsultation.gov.au/www/nhrcc/RWPAttach.nsf/VAP/(4CA02151F94FFB778ADAEC2E6EA8653D)~NHRC+Report+(Prelims).pdf/$file/NHRC+Report+(Prelims).pdf

Khan, I, Human Rights and Australia – is this still the land of the ‘fair go’?, available at: http://www.safecom.org.au/docs/irene-khan-speech.rtf

Kirby, M, Herbert Vere Evatt, The United Nations and the Universal Declaration of Human Rights after 60 Years, available at:
http://www.hcourt.gov.au/assets/publications/speeches/former-justices/kirbyj/kirbyj_14aug08.pdf

Kirby, M, The National Debate About a Charter of Rights and Responsibilities – Answering Some of the Critics, available at:
http://www.hcourt.gov.au/assets/publications/speeches/former-justices/kirbyj/kirbyj_21aug08.pdf

McHugh, M, Does Australia Need a Bill of Rights?, available at:

http://www.nswbar.asn.au/docs/resources/lectures/bill_rights.pdf

Ozdowski, S, Changing Australia’s Human Rights Culture, available at:
http://www.culturaldiversity.net.au/index.php?view=article&id=36%3Achanging-australias-human-rights-culture&option=com_content&Itemid=24

Scrutiny of Acts and Regulations Committee Review on the Victorian Charter available at:
http://www.parliament.vic.gov.au/images/stories/committees/sarc/charter_review/report_response/20110914_sarc.charterreviewreport.pdf

Williams, G, ‘The Victorian Charter of Human Rights and Responsibilities: Origins and Scope’, Melbourne University Law Review, vol. 30, no. 3, 2006, pp. 881-905.

© APH Network and contributors 2011. All rights reserved.

Citation: Author, Charting a Fairer and more Tolerant Society: Australia must Draw on its Impressive Past and Promote rather than Reject Human Rights Charters.

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