Taking responsibility for human rights

Ron Dyer

A recent survey revealed that 61 per cent of Australians think that this nation has a Bill of Rights. Ask Australians what they will do if they get arrested and are pressed to confess, many will tell you that they will plead 'the Fifth'.

Telling us that Australia is the envy of most nations when it comes to protecting rights - as Julian Leeser from the Menzies Research Centre did in the Sydney Morning Herald recently - does not make it so, any more than watching too much American television.

The inference is that most of the world is jealous of the fact that Australia is now the only democratic nation on earth that does not have a charter or bill of rights. Lesser should immediately confess to having no evidence to back this up. No good him pleading the Fifth, in this country.

And surely it is to the evidence that we must go on this important question, not polemical mumbo jumbo. Here I will be content to recall the detention of Dr Mohammed Haneef by the federal police for 12 days without charge and the national security legislation.

Dr Haneef's detention was an example of a government agency operating in blatant contravention of Australia's obligations under the International Covenant on Civil and Political Rights. His detention without charge was in violation of Article 9 of the Covenant, which declares the rights of individuals against arbitrary detention and affirms the right to a prompt appearance before a judicial officer to consider the merits of the case.

Anti-rights campaigners are given to playing up responsibilities. The fact that an arm of the Australian government can blatantly ignore its responsibilities under international law is a prime example of why we should now codify human rights protections in domestic law. They should be extended to all people within the nation's jurisdiction.

The national (and sub-national) security legislation that was enacted in the wake of the terrorist attack in the United States in 2001 has also gone well beyond what is needed to meet the perceived threat.

This legislation threatens the liberties of all Australians. In defiance of the principles of procedural fairness, for example, where a person is charged with a terrorism offence, evidence can be given to a court but neither to the defendant nor his or her lawyer on national security grounds.

ASIO can now detain people for up to seven days for questioning, even though they are not suspected of a terrorism offence. These people can be gaoled for five years if they disclose to anyone what happened to them during the following two years.

These practices blatantly offend universal human rights.

Those opposed to a charter concede that the experiences of Cornelia Rau and Vivian Alvarez Solon were 'terrible'. There is no integrity in excusing mistakes on the basis of bureaucratic bungling without taking responsibility for making every effort to safeguard against them occurring in the first place.

The enactment of a charter of human rights would act as a 'filter' for legislation to prompt elected officials and those who implement their policies to take on responsibility for considering human rights.

There is a strong case for Australia to incorporate the International Covenant on Civil and Political Rights into domestic law. This approach will have the additional benefit of avoiding any constitutional problems posed by our separation of powers and allaying the always over-vaunted concerns about politicising the judiciary.

Ultimately, upholding human rights is about Australians generally, as well as helping to ensure that there are fewer victims of terrible abuse.

It was during the presidency of Australia's own Doc Evatt that the General Assembly of the United Nations adopted and proclaimed the cornerstone of modern human rights protection, the Universal Declaration of Human Rights.

In light of the major role that Australia played in the birth of the most famous declaration of human rights in history, it is a shameful irony that we now live in the only democratic nation in the world that has not followed through on that great promise.

Ron Dyer was Minister for Community Services and Juvenile Justice in the Carr Labor government. He is Vice President of the Evatt Foundation and the Chair of the Democracy and Human Rights Committee.

Suggested citation

Dyer, Ron, 'Taking responsibility for human rights', Evatt Journal, Vol. 9, No. 3, June 2009.<https://evatt.org.au/taking-responsibility-for-human-rights>

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