Ritter: Human Rights in the Western Third

David Ritter reports on the success of the Perth launch of New Matilda’s Human Rights Act for Australia campaign and moves afoot to introduce a Western Australian State Charter by State Attorney General Jim McGinty.

On Tuesday, 18 April 2004, the New Matilda campaign for a national bill of rights held its Perth launch, at an event hosted by the Institute of Advanced Studies of the University of Western Australia. Leading Perth business identity and philanthropist Janet Holmes á Court hosted the event which featured speeches from recently retired Chief Justice of the WA Supreme Court turned Professor, David Malcolm AC QC, former State Premier and current Federal Member for Fremantle, the Hon. Dr Carmen Lawrence, Associate Professor Spencer Zifcak of La Trobe University and the New Matilda’s own policy coordinator, Nicholas Carney.

The event, held on Easter Tuesday, was well attended by a crowd of more than 250 people, including at least four state members of the Western Australian Parliament. The launch was the third and final in the Institute of Advanced Studies‘ series of talks by distinguished Australians, advocating for further discussion of the Australian human rights landscape, and was the latest in a series of events held in Perth over the last few years which have been dedicated to fostering support for bills of rights at both a state and national level.

Speaking first, Zifcak outlined the scope and intent of the New Matilda’s Draft Australian Human Rights Act, in mellifluous tones. As the Associate Professor persuasively pointed out, the agenda set out in the New Matilda’s draft Human Rights Act for Australia is hardly revolutionary, reflecting no more than what are already ‘deeply held and enduring Australian values.’

Dr Lawrence was also keen to stress the modesty of the New Matilda proposal, because given that just about all Australians agree that basic human rights are worth of respect and recognition, the debate is really about little more than the mechanics of protection.

Professor Malcolm’s view was that, given Australia’s status as the only Western country without a national human rights Act or constitutional bill of rights, either we must be unique in having existing procedures that are good enough, or our system is deficient. Conspicuous in his recent release from the requirement for judicial dispassion, Professor Malcolm declared himself, with ‘the shackles finally removed’, now ‘absolutely determined to argue to argue the case for a Bill of Rights in Australia.’ Carney’s closing talk was a well measured description of the New Matilda’s campaign so far, accompanied by suggestions for how members of the audience could become involved.

Although last week’s event concentrated on the Federal scene, public interest in improved human rights protection in WA is also focused on the state jurisdiction. The Western Australian Attorney General, the Hon Jim McGinty is known to be interested in enacting a WA human rights act with the objective of nurturing the State’s human rights consciousness. He has expressed his preference for legislation along the lines of the United Kingdom and Australian Capital Territory Acts, in the form of an ordinary statute and limited to protecting only those rights set out in the ICCPR.

A legislative scheme of the kind favored by the Attorney would require each new bill in Parliament be accompanied by a statement indicating whether a proposed new law is consistent with the human rights protected by the ICCPR. However, non-compliance would neither invalidate the legislation, nor affect its operation or enforcement once enacted.

The model would allow for application to be made to the Supreme Court for a declaration that legislation is incompatible with the human rights, but such a declaration of incompatibility would not render the law invalid. The type of statutory scheme preferred by the Attorney General does not allow an individual whose human rights have been infringed to sue for damages.

The Attorney General’s personal view is mirrored by the Western Australian Labor Party’s official platform, as amended at the November 2005 State Conference, which expresses the party’s support for the enactment of state human rights legislation modeled on the UK Human Rights Act.While lawyers and politicians give appropriately detailed and careful thought to the technicalities associated with the possible enactment of human rights legislation, it is important to go beyond technical debate to the public heart of the matter.

Government is big and getting bigger all the time and, as a number of speakers at the Perth launch of the New Matilda’s proposal for a human rights act for Australia highlighted, some of the established conventions for restraining the possible misuse of power by government are failing or in decay.

The doctrine of ministerial accountability, for example, has been undermined to the point of near-complete ineffectiveness by the Howard Government. After certain recent events at a Commonwealth level, even those who argue that the Australian community has not suffered from an absence of human rights legislation in the past, must surely not be so sanguine about the future.

Western Australians are deeply proud of and committed to our state’s egalitarianism, that precious notion that everyone within the community should have equality of opportunity: the ethos of a ‘fair go.’ The people of the ‘Western Third’ are traditionally considered - even mythologized - as deeply attached to individual liberty, and suspicious of the power of government which thinks it knows better.

Human rights legislation is not intended to give more power to the government or the courts, but to look after people: to protect the individual from unwarranted intrusion by government agencies which think they know best. State and national human rights legislation will do no more than give overdue expression to cherished Western Australian ideals.

David Ritter is President of the WA Society of Labor Lawyers (http://www.laborlawyerswa.org.au) and a Lecturer in Law at the University of Western Australia.