David Hicks' Confinement In Australia - How a Charter of Human Rights Could have Helped

People often ask ‘What practical difference will a charter of rights make?’ This is not an easy question in the abstract, but much easier if we use a hypothetical example. The treatment of David Hicks provides an excellent case study.

Along with other lawyers and organizations concerned with international law in Australia, The Justice Project (TJP) is alarmed by the government’s treatment of David Hicks. The situation has not been remedied by David’s plea of guilty and the ‘deal’ he was obliged to do, as a condition of being repatriated.

Very little could be done in the Australian courts to force the US authorities either to charge David, or else to release him. For the most part, jurisdiction of Australian courts depends on the party concerned physically being in Australia.

The mechanics of how David will be removed from Guantanamo Bay, transported to Australia and placed in detention on arrival, are not publicly known at this stage. There will no doubt be an agreement signed by both countries, probably not in the form of a treaty, but something less formal. Whatever the form and content of that agreement, unless David has given up all his rights at some earlier date, that agreement, itself, could not validly extend to stripping David of his rights to challenge the legality of his detention once he sets foot in Australia.

No doubt the instrument, whatever form it takes, will contain the kind of limitation that human rights lawyers in the federal sphere, are tired of reading: the so-called ‘privative clause’. It usually involves words to the following effect:      

           The terms of this instrument cannot be challenged in any way in  any court.       

At this stage, and as a betting man, based on the government’s form to date, I would wager that the government will deploy a privative clause in the case of David Hicks.

While the government claims it stands for the rule of law, its actions are very different. The rule of law means, at the very least, that all citizens are equal before the law, citizens cannot be imprisoned without being convicted of a crime, the trial of an accused must be attended by due process and the accused must be convicted in a duly constituted court. Finally, the accused must have a right of appeal - to a court empowered to release the prisoner if an appeal is successful.

If I am correct, David Hicks will singled out for special treatment, he will not be treated equally with other citizens, he will confined against his will and he will serve time in prison without conviction in a duly constituted court - either here or in the US.

Most repugnant of all, by virtue of the privative clause, David will be unable to challenge these violations of his basic civil rights in any Australian court.

One of the most important weapons in the armory in Victoria’s Charter of Human Rights and Responsibilities is the so-called ‘reading down clause’. In matters involving the Charter and in an appropriate case, a judge is empowered to ‘read down’ a clause such as a privative clause. The court has the opportunity to consider the merits of a claim a citizen has brought, without the government first slamming the door of the court in the citizen’s face.

If there were a federal charter of rights that mirrored the terms of the Victorian Charter the government could not ‘get away’ with this wholesale and grotesque breach of David’s human rights. Relying on a reading down clause, David could argue at the Federal Court for a declaration of inconsistent interpretation. If the court made the order, Parliament would be forced to reconsider how this law came to be passed and would be forced to justify this law’s continued existence.   

On ANZAC day we celebrate the courageous deeds of our armed forces and our national ethos, which is meant to include giving blokes a fair go.

Whichever the government decides, one thing is absolutely clear. The government can please itself. There are no guarantees at federal law a citizen can point to, to enforce the rule of law.

Melbourne

ANZAC DAY 2007

Why We Need a Charter of Human Rights

WHY DO WE NEED A CHARTER OF HUMAN RIGHTS?

Human Rights Charters are necessary for many reasons:

To recognize and protect universally agreed rights - A Human Rights Charter will protect the minimum values agreed upon by all sections of Victorian society and all countries around the world. Many of these values are not currently protected in Victoria. A Human Rights Charter would stop government departments from breaching individuals’ rights.

To put human rights above politics and arbitrary government action – at the moment, there are very few restrictions on what laws the Victorian Government can make. A Charter of Rights is necessary to ensure all human rights are respected by the government.

To improve government policy making and decision making – we need a Human Rights Charter to require governments to take human rights seriously and consider how they can protect them when they introduce new laws. It is much better to prevent bad law making than trying to fix it after it has been passed. A Human Rights Charter could also ensure that Victorian government agencies have policies which comply with human rights.

To bring us into line with other countries –Australia is the only developed country without a Charter of Rights. Countries such as England and New Zealand, with very similar systems of government, have realized that a Charter of Rights is necessary. The ACT recently passed Australia’s first Charter of Rights. Victoria can be a leader within Australia and convince other states of the need for a Charter.

To help educate Victorians about human rights and protect a culture of respect for human rights – A Human Rights Charter would raise the profile of human rights and educate people about their content. As people become more aware of human rights, the culture in Victoria is likely to change into one which better respects human rights.

To ensure equal respect for everyone’s human rights – The worst violations of human rights in Victoria are often inflicted on those most vulnerable, such as indigenous people, people with disabilities, people with mental illness, asylum seekers, children and prisoners. Society and all people in it will benefit from a Human Rights Charter.

To fulfill our international obligations – Australia has ratified numerous international agreements stating that it will protect and uphold fundamental human rights, yet many of these rights are not legally protected in Australia or Victoria. A Victorian Human Rights Charter would ensure that Victoria is in compliance with the promises Australia has made to the rest of the world.

All About Human Rights Charters

WHAT IS A HUMAN RIGHTS CHARTER?

 A Human Rights Charter is a law or part of the Constitution which protects the basic standards to which all humans are entitled; their human rights.  “Human rights” can be simply summarised by the common Australian slogan of a “fair go”. A Human Rights Charter could protect the rights that we sometimes take for granted, such as access to affordable health care, freedom of religion, freedom of speech and the right to a fair trial. The introduction of a Charter of Rights would also make the government more accountable for seeing these rights are protected.

WHAT TYPE OF HUMAN RIGHTS CHARTERS ARE THERE?

There are different models of Charters of Rights.  Many of the Charters overseas focus on civil and political rights, rather than access to health care, education and housing. Many people believe that it would be pointless to create a Human Rights Charter without including all the fundamental human rights.

In England and New Zealand, the Charters of Rights allow for individuals to seek remedies for breaches of protected rights. This is necessary to ensure that the human rights of disadvantaged people are not forgotten.

DOES ANYONE ELSE HAVE A HUMAN RIGHTS CHARTER?

Many other countries have a Human Rights Charter.  In fact, Australia is the only western type democracy in the world without one.  Many developing nations have a Bill of Rights or a Human Rights Charter. The United Kingdom, America, Canada, South Africa, New Zealand all have Charters of Rights for their people. In Australia, only the ACT and Victoria have adopted a Human Rights Charter.  Following the enactment of this legislation, other states such as Western Australia, Tasmania and New South Wales been motivated to consider the possibility of enacting similar Human Rights Charters. In time, it is thought, this would lead to a Human Rights Charter for Australia.

WHO WILL A HUMAN RIGHTS CHARTER PROTECT?

A Charter of Rights should protect the rights and freedoms of ALL individuals.  The fundamental human rights (for example the right to free speech, freedom of association, access to health care and education) affect ALL individuals. A Human Rights Charter will aim to restore and preserve those rights and freedoms which are common to us all.

The protection of freedoms of thought, expression, religion and belief; the rights to non-discrimination and equality before the law; and the right to participate equally and actively in the political life of the Australian community are fundamental. They are basic to Australia's tradition of providing everyone with a fair go. These rights need to be above politics. A Charter would make them so. A Charter would also bring us into line with every other Western country.

A Human Rights Charter would aim to enhance an attitude of respect for the rights of other members of the community. Through ongoing community education as well as processes of mediation and legal enforcement, we would all develop a more thoughtful and responsible attitude to others’ rights. An example of this is the campaign against drinking and driving.

WHAT EFFECT WOULD A HUMAN RIGHTS CHARTER HAVE ON DOMESTIC LAW?

The enactment of a Human Rights Charter could impose an obligation on Courts to interpret laws in accordance with the charter. It would empower the Court to identify inconsistent laws and declare them as incompatible with the charter. Parliament would then have to consider if it should be changed. This process does not disturb the power of Parliament to pass legislation, but it does make it more likely that Parliament would take human rights into account when making or changing laws.

WHAT KIND OF THINGS WOULD BE PROTECTED BY A CHARTER OF HUMAN RIGHTS?

A Bill of Rights would protect many fundamental human rights and freedoms. Some examples would be:

• The guarantee that each person is equal before the law
• The right to a speedy trial
• The protection of the family unit and the interests of children
• The assurance that individuals are treated with dignity in prison

The violation of these human rights occurred both in Australia as well in the international arena. In real life, recent breaches have been exemplified by the indefinite detention of asylum seekers, the recent ASIO Act and the incarceration and trial of David Hicks, to name just a few. These incidents reveal how necessary a Bill of Rights is to the protection of freedoms and individual interests in Australia.

WHAT PART DOES THE CONSTITUTION PLAY IN A CHARTER OF HUMAN RIGHTS?

As Chief Justice Brennan has stated, a “Bill of Rights would require the judiciary to protect individual freedoms and interests more fully than they can be protected under the existing Constitution, and that protection may be needed if the Parliament is unwilling or unable to provide it.” (Radio National Transcripts, Tuesday 3 March 1998).

Although implied rights and freedoms have previously been derived from the Constitution, the Constitution itself does not explicitly protect the human rights and freedoms of individuals. Indeed, the main purpose of the Constitution is to mediate the tension between the powers of various arms of government (the executive, the legislature and the judiciary) while also empowering Parliament to legislate in relation to matters important to the administration of government in Australia.

Not only could a Bill of Rights operate as a check and balance to the power granted to the various arms of government, but it could also provide an express protection against the over exercise of that power or the inactivity of Parliament to human rights breaches

Human Rights are For All People

We at The Justice Project believe that issues of human rights affect all Australians. Over a period of time, we have seen the erosion of the rights of less powerful groups, marginalised people, and those who do not have a strong voice to protect themselves.  Perfect examples of these groups are asylum seekers and indigenous Australians. 

All of us are busy with our lives and if we are not personally affected by something it is easy to be complacent.  We think of ourselves as easy-going, but sometimes this can be an excuse for apathy or mental laziness. We believe that the erosion of basic human rights, such as the right to freedom from arbitrary detention, access to courts, freedom of speech, special rights pertaining to women, children and other vulnerable groups, and many others, will eventually affect us all. 

We want to see Australians interested in each other, looking out for each other, and standing up for each other, regardless of colour, religion, nationality, language,  gender, sexuality, socio-economic status or political opinion. We believe that understanding breeds tolerance and solidarity, and in a climate of increasing fear and suspicion, we want to see our fellow  Australians reject hostility and discrimination in favour of acceptance, openness and mutual respect.

The Justice Project aims to increase awareness of the importance of protecting human rights across the board in Australia.

Campaign for protection of Human Rights in Australia

Australia's approach to human rights is unique. Every other country which is usually called a "western liberal democracy" has some kind of human rights protection built into its law, whether it be in the national Constitution or a Bill of Rights, or similar.

However, Australia has nothing of the kind. This leaves a significant gap in the law. We are not talking about creating a lawyers' picnic here.  The process of identifying each and every of the human rights which, as a community, we wish to protect, necessarily involves establishing basic benchmarks.  These benchmarks establish a standard against which ordinary Australians can access the merits of legislation that may seek to erode one or other of our rights.

In other countries, laws regarding human rights are central to the functioning of their legal system. In the UK, for example, rights enshrined in the UK Charter exist in addition to more ephemeral rights thought to exist under an unwritten Constitution.

The absence of an effective Charter of Rights in Australian law means our laws dramatically lags behind other countries in the protection of human rights.  As a result of this, Australia has been criticised by United Nations Human Rights Committees.  Our international reputation is declining rapidly, especially on account of our treatment of asylum seekers and members of the indigenous community.

Recent history has shown that without an effective “brake” on the powers of parliament, governments are at liberty to, and do, enact legislation that seriously erodes our rights.  Rights which we had always regarded as untouchable.

Government has savagely legislated to cut back human rights, across the board.  Government has stripped the courts of their traditional role in striking the balance between the rights of the State and the individual.  Australians are no longer getting a Fair Go!

Government is the servant of the people, not vice versa!

Australia is the only Democracy Without a Charter of Human Rights

Australia's approach to human rights is unique. Every other country which is usually called a "western liberal democracy" has some kind of human rights protection built into its law, whether it be in the national Constitution or a Bill of Rights, or similar.

However, Australia has nothing of the kind. This leaves a significant gap in the law. We are not talking about creating a lawyers' picnic here. The process of identifying each and every of the human rights which, as a community, we wish to protect, necessarily involves establishing basic benchmarks. These benchmarks establish a standard against which ordinary Australians can access the merits of legislation that may seek to erode one or other of our rights.

In other countries, laws regarding human rights are central to the functioning of their legal system. In the UK, for example, rights enshrined in the UK Charter exist in addition to more ephemeral rights thought to exist under an unwritten Constitution.

The absence of an effective Charter of Rights in Australian law means our laws dramatically lags behind other countries in the protection of human rights. As a result of this, Australia has been criticised by United Nations Human Rights Committees. Our international reputation is declining rapidly, especially on account of our treatment of asylum seekers and members of the indigenous community.

Recent history has shown that without an effective “brake” on the powers of parliament, governments are at liberty to, and do, enact legislation that seriously erodes our rights. Rights which we had always regarded as untouchable.

Government has savagely legislated to cut back human rights, across the board. Government has stripped the courts of their traditional role in striking the balance between the rights of the State and the individual. Australians are no longer getting a Fair Go!

Government is the servant of the people, not vice versa!