An Australian charter of rights

Australia is the only Western democracy without some kind of charter or bill of rights. Though the Commonwealth Constitution contains some limited rights, such as the right to interstate trade and movement and the right to free communication on political matters, there is no comprehensive charter or bill of human rights and civil liberties. Not only does this leave human rights and civil liberties vulnerable to curtailment and abrogation, it also means that Australia has not implemented in domestic law its human rights obligations under international law. Liberty believes that Australia should meet its international human rights obligations without qualification. Australia is currently a party to the following international human rights conventions:

• The International Covenant on Civil and Political Rights (ICCPR)
• The International Covenant on Economic, Social and Cultural Rights (ICESCR)
• The International Convention against Torture
• The International Convention for the Elimination of Racial Discrimination (ICERD)
• The International Convention for the Elimination of Discrimination against Women
• The International Convention on the Rights of the Child

However, although Australia has signed and ratified these treaties and thereby become bound under international law to adhere to them, they have not been fully implemented in Australian domestic law by legislation. Thus Australians do not enjoy the full protection of these international rights in Australian law. These conventions are important international instruments agreed to by a majority of countries to protect basic human rights. Each one should be fully enacted into Australian domestic law. At present, however, these international conventions are only sporadically incorporated in Australian law, leaving Australians with an inadequate and partial scheme of human rights protection. Liberty notes with approval that the Commonwealth Government has announced that it will conduct a consultation to determine how best to protect human rights in Australia. Liberty urges the Government to initiate such a consultation as soon as possible. The consultative process should be independent, impartial and comprehensive. It should embrace the protection not just of civil and political rights but also the protection of economic, social and cultural rights. The consultation, however conducted, should report on its findings to the Commonwealth Government no later than June 30 2009. There are a number of competing models for the legal recognition of civil liberties and human rights. According to the traditional view, the sovereignty of Parliament is the surest safeguard of civil liberties. This view draws on Parliament’s historical role in breaking the tyranny of executive government but overlooks the latter day failures of Parliament to hold the executive to account and the frequent abrogation of human rights by legislation. The United States Bill of Rights model provides the most effective curb on the powers of the legislature and the executive. Under this model, rights are entrenched in the constitution and legal action can result in rulings that legislation and executive acts are invalid. Critics of this model say that it hands too much power to unelected judges. The statutory charter of rights model, adopted in the United Kingdom, Victoria and the ACT, takes a more limited approach. It preserves the sovereignty of Parliament but requires legislation to be interpreted, and government departments to act, in accordance with legislated human rights. There is much debate about which is the best model. Liberty takes the view that the most suitable model for contemporary Australia is the statutory charter. It has therefore enthusiastically supported the Victorian Parliament’s Charter of Human Rights and Responsibilities Act 2006. It urges the Commonwealth Parliament to pass similar legislation. Liberty considers that the arguments most frequently levelled against a charter of rights are misplaced. Such arguments proceed principally upon the basis that a charter will take power from the peoples’ elected representatives and confer it upon an unelected judiciary. Under the charter model, however, the judiciary is not able to invalidate legislation as inconsistent with human rights. It is only empowered to interpret legislation in accordance with human rights and, if it finds legislation to be inconsistent with a human right, to make a declaration to that effect. It will be then for the Parliament to decide whether or not the law infringing upon human rights should be amended or repealed. Thus parliamentary sovereignty is preserved yet legislation infringing human rights can be expected to receive more scrutiny than would otherwise be the case. Liberty believes that a federal charter of rights should contain the following categories of rights:

• Personal Rights including the right to life, the right to equality, the right to liberty, the right to security, freedom from torture;
• Civil and Political Rights including freedom of conscience, freedom of thought and expression, freedom of assembly and association, and the right to vote;
• The Rights of Individuals in Groups including the right to privacy and family life, the freedom of movement, the right to asylum in the case of persecution, the right to property and freedom of religion;
• Economic and Social Rights including the rights to work, to education, to health, to social security, to participate in public life and other related entitlements.
• Indigenous Rights including cultural rights; the rights to practise and revitalize their spiritual and cultural traditions, customs and ceremonies.