Who’s afraid of Human Rights?

‘Who’s afraid of Human Rights?’ is the title of Julian Burnside gave to the 28th Sir Richard Kirby Lecture he delivered at Wollongong University, 25 September 2008.

Sir Richard Kirby was the first president of the Commonwealth Conciliation and Arbitration Commission and, in his introduction, Julian drew together the two strands-industrial relations and human rights.

Industrial relations has wage justice as a central concern, at least until Work Choices; wage justice is a necessary element of social justice; social justice is not possible in a community which does not respect human rights. Securing wage justice and protecting human rights will always depend on the rule of law, because they will always be opposed by powerful interests-whether powerful in wealth or powerful in numbers.

His direct connection with industrial, he said, is slight-just one or two cases, but one of them mattered quite a lot and it had a powerful effect on him. This, of course, was MUA v Patrick Stevedores.It [MUA v Patrick Stevedores] was an exciting case which significantly shifted my previous, naive belief that governments in Australia behaved honestly. It also left me with a significantly changed view of the importance of unions. On the day that the High Court upheld the Union’s case, we were approached by a member of the cleaning staff of the court who said ‘Thanks for that fellas, we all feel a bit safer now’.

Of course, Work Choices hadn’t been heard of at that time. But his point was a good one: if an employer could crush the MUA, then no employee in Australia was safe. Union power, responsibly exercised, redresses the imbalance of power between employers and the individual employee.

The MUA case had many dimensions, other than the legal dimension. There was a substantial battle being waged in the public arena at the same time. Regardless of the legal niceties, many Australians were shocked on the morning of 8th April 1998 when the news carried images of attack dogs and men in balaclavas taking over every major port in Australia. The immediate reaction of many was: this is un-Australian. They reacted that way despite the fact that the MUA was a deeply unpopular union, and without knowing whether any laws had been broken in the process. Regardless of the details, the whole episode seemed incompatible with the way Australians saw themselves because it ran counter to our unconscious ideas about how Australian society works.

Although the MUA case is not what I came to talk about, it has a connection to my subject. At the heart of the MUA case was the principle of legality-the principle that the conduct of the powerful will be tempered by the processes of law. Mediating the use of power is the hallmark of any legal system. The starting condition in any embryonic society is that might is right. A principal purpose of government is that the legitimate interests of all - the weak and the strong - should be protected by the rule of law. That is reflected in the writing of Hobbes and Locke in the troubled 17th century. It was also a driving impulse behind the Universal Declaration of Human Rights. It is the highest aspiration of any legal system to ensure dignity and justice for all - rich and poor, powerful and weak, the popular and the despised.

The argument about a Bill of Rights
At the 2020 Summit in Canberra earlier this year, a view emerged strongly that Australia should have a Federal Bill of Rights. That call-fairly predictable in the circumstances-triggered a series of public speeches and papers as Cardinal Pell, Bob Carr and others raised their voices against a Bill of Rights.

These pre-emptive strikes against the possibility of a Federal Bill of Rights had one thing in common` they did not identify what sort of Bill of Rights they are opposed to. Some of their criticisms might be valid if the proposal was for a US-style Bill of Rights. So far as I am aware, no-one in Australia is pushing for a US-style Bill of Rights. If the opponents of a Bill of Rights think they are shooting fish in a barrel-as the startling self-confidence of some of their comments suggested-then they have the wrong barrel, and the wrong fish.
The US Bill of Rights is an 18th Century document with its roots in 17th Century England, and a dash of Magna Carta providing the best bits.

Modem Bills of Right do not concern themselves with the right to bear arms or the quartering of soldiers. They are concerned instead with the sort of rights recognized by the Universal Declaration of Human Rights: equality before the law, the right to life, protection from torture and cruel inhuman or degrading treatment, freedom from forced work, freedom of movement, privacy and reputation, freedom of thought, conscience, religion and belief; freedom of expression, peaceful assembly and freedom of association, protection of families and children, humane treatment when deprived of liberty, and so on.

In the wake of the 2020 Summit, the public debate about a bill or charter of rights has restarted. Predictably, the conservative commentators (Gerard Henderson, Bob Carr, Miranda Devine) are opposed to one. Their arguments speak in alarmist terms of the horrors that would be, unleashed if rights were protected.

To make the debate intelligible, it is useful to identify what we are talking about. We are not talking about a US style Bill of Rights. Some people prefer to speak of a Charter of Rights in order to make the distinction plain. Nevertheless, it is worth bearing in mind that there is no magic in the name: a Charter of Rights and a Bill of Rights are the same thing; the US Bill of Rights is an early example, but it is not one to be emulated. The US Bill of Rights is an 18th century document with almost nothing in common with modern bills of rights.

The rights protected by a modem bill of rights are-broadly speaking-the sort of rights addressed in the Universal Declaration of Human Rights which Australia adopted in 1948. It would be difficult to find any serious disagreement about the nature of those rights - freedom from arbitrary detention, freedom from torture, freedom of thought and belief, equality before the law etc. The disagreement arises when the means of protecting those rights is in issue.

Broadly speaking, a modem bill of rights can be a weak model or a strong one; and it can be an ordinary statute or constitutionally entrenched. The arguments for and against a bill of rights change profoundly according to the model under discussion. Unfortunately, the conservative commentators never identify exactly what it is they are condemning.

Statutory bills of rights can be disregarded or repealed if the Parliament so wishes. A constitutional bill of rights, on the other hand, cannot be repealed or altered except by referendum. A constitution (in theory) expresses the will of the people directly, and binds the Parliament. A statute, by contrast, expresses the will of the people indirectly through their elected representatives and can be made, changed and repealed by the Parliament.

A strong model Charter creates rights of action: if a person’s rights are breached, they may be able to sue for damages. A strong model may also forbid Parliament to do certain things and thereby directly limit the power of the Parliament.

A weak model simply requires Parliament to take protected rights into account when passing legislation. If they wish to disregard those rights, they must say so plainly. This means that the Parliament will be politically accountable if it decides to disregard rights which it has previously resolved to respect. In addition, it guides Judges in the way they should interpret legislation, so as to preserve rights rather than defeat them.

The ACT and Victoria both have statutory, weak Charters of Rights. So long as the public and the conservative commentators find it alarming to protect rights, a weak statutory model is a good solution.
It is usual to see a range of arguments put up against adoption of a Bill of Rights. The standard ones are as follows:

• Our rights are adequately protected by the majesty of the Common Law;
• It is anti-democratic because it would transfer power from Parliament to unelected, unrepresentative judges;
• It transfers power disproportionately to minorities;
• They do not work;
• A Bill of Rights will be a Lawyers’ Feast.

Let me deal with each of these in turn.

Our rights are protected
Within the scope of its legislative competence, Parliament’s power is unlimited. The classic example of this is that, if Parliament has power to make laws with respect to children, it could validly pass a law which required all blue-eyed babies to be killed at birth. The law, although terrible, would be valid. One response to this is that a democratic system allows that government to be thrown out at the next election. This is not much comfort for the blue-eyed babies born in the meantime. And even this democratic correction may not be enough: if blue-eyed people are an unpopular minority, the majority may prefer to return the government to power. The Nuremberg laws of Germany in the 1930s were horrifying, but were constitutionally valid laws which attracted the support of many Germans.

Generally, Parliament’s powers are defined by reference to subject matter. Within a head of power, Parliament can do pretty much what it likes. Thus, the Commonwealth’s power to make laws with respect to immigration has in fact been interpreted by the High Court as justifying a law which permits an innocent person to be held in immigration detention for life, where he is liable for the daily cost of his own detention.
The question then is this. Should we have some mechanism which prevents parliaments from making laws which are unjust, or which offend basic values, even if those laws are otherwise within the scope of Parliament’s powers? If such a mechanism is thought useful, it is likely to be called a Bill of Rights, or Charter of Rights, or something similar.

In November 2003 two cases were heard together by the High Court of Australia. Together they tested key aspects of the system of mandatory detention. One was the case of Mr Al Kateb . He arrived in Australia as a boat person and sought asylum. He was placed in immigration detention because the Migration Act says that a non-citizen who does not have a visa must be detained and must remain in detention until (a) they are given a visa or (b) they are removed from Australia. He was refused a visa. He could not bear it in Woomera and asked to be removed, rather than wait out a year or two by appealing. But it was not possible to remove him from Australia, because he is stateless: there is nowhere to remove him to. The government’s argument was that, although Mr al Kateb has committed no offence, he could be kept in detention for the rest of his life. On 6 August 2004, the High Court by a majority of 4 to 3 accepted that argument.

The other case, heard alongside al Kateb and decided on the same day, was Behrooz . Mr Behrooz came from Iran, sought asylum and found himself in the endless loop of rejection and appeal and had spent about 14 months before escaping in November 2001. At that time, Woomera was carrying three times as many people as it was designed to carry. The conditions there were abominable. Reports from that time show that there were three working toilets for the population of nearly 1500 people; women having their period had to make a written application for sanitary napkins. And if they needed more than one packet they had to write and explain why they needed more than one packet and very often they had to go and provide the form to a male nurse who would then dispense what they needed. Conditions in Woomera at that time were unconscionably dreadful. The Immigration Detention Advisory Group, the government’s own appointed body, described Woomera as ‘a human tragedy of unknowable proportions’.

Mr Behrooz found it so intolerable that he escaped, along with some others. He was charged with escaping from immigration detention. The defence went like this: The Australian Constitution embodies the separation of powers. This means that the legislative power is vested in the parliament (Chapter I); the executive power is vested in the Executive government (Chapter II) and the judicial power is vested in the courts (Chapter III).

The notion of the separation of powers involves this, that one arm of government cannot exercise the powers given to another arm of government. It is one of the very few constitutional safeguards we have in Australia. Central to the judicial power is the power to punish. As a matter of constitutional theory, punishment cannot be administered directly by the parliament or by the executive, punishment can only be imposed by order of the Chapter III courts. Normally, locking people up is regarded as punishment and therefore it is only Chapter III courts that can lock people up. What about immigration detention?

In Lim’s case in 1992, the High Court held that administrative detention may be justified in limited circumstances, principally where detention is reasonably necessary as an aid to the performance of a legitimate executive function. So if a person’s asylum claim is to be processed, or if the person is to be made available for removal from Australia then, as long as the detention is reasonably necessary for those purposes, it will be lawful even though not imposed by a Chapter III court.

Well, the defence in Behrooz went like this. Assuming mandatory detention is constitutionally valid, if the conditions go beyond anything that could be seen as reasonably necessary to the executive function it is said to support then that form of detention will be constitutionally invalid because it amounts to punishment inflicted by the Executive.

We issued subpoenas, directed to the Department and ACM, seeking documents that would reveal details of conditions in detention. They resisted. They said the subpoena was invalid because the conditions in detention will never affect the constitutional validity of detention. And all the way to the High Court they maintained this argument that no matter how inhumane the conditions are, detention in those conditions is nevertheless constitutionally valid.

On 6 August 2004, the High Court accepted the government’s argument. Thus on the same day the High Court held that it is constitutionally valid in Australia to hold an innocent person for life in the worst conditions human malevolence can devise. In the same year, the High Court held that the same principles apply even if the detainee is a child.

These three cases from 2004 are a clear illustration of the problem that, if Parliament decides to make a law which destroys basic rights, the Common Law is unable to prevent that result.

Anti-democratic, because it transfers power to Judges
In one sense, it is true that a Bill of Rights gives power to judges. A Bill of Rights limits the power of Parliament but not by reference to subject matter. A modem Bill of Rights introduces, or records, a set of basic values which should be observed by parliament when making laws on matters over which it has legislative power. It sets the baseline of human rights standards on which Society has agreed. Because this is so, it is wrong to say that a Bill of Rights abdicates democratic power in favour of unelected judges. Judges simply apply the law passed by the parliament. That is their role. Many cases raise questions about Parliament’s powers. Judges are the umpires who decide whether Parliament has gone beyond the bounds of its power. A Bill of Rights is a democratically created document, like other statutes. Enforcing it is not undemocratic at all.

Protecting unpopular minorities
One of the most surprising objections to a Bill of Rights is that it gives disproportionate power to minority groups. At one level, the complaint is accurate. In Australia today, the people whose human rights are at risk are not members of the comfortable majority, but members of minority groups who are typically powerless and often unpopular and almost always politically irrelevant. Whilst, in terms, a Bill of Rights protects the rights of all, its primary use is to protect the rights of the weak because the strong are already safe. The criticism is all the more surprising when you consider that many of those who advance it proclaim themselves to be devout Christians. I had thought, although I haven’t checked recently, that much of Christ’s teaching was concerned with the protection of the weak, the unpopular, the despised and the oppressed. It seems a curious thing then that practising Christians should object to a law which achieves that result.

This complaint has a darker side. Broadly speaking, Australians have a fairly respectful attitude to human rights. If most Australians were asked What they thought of human rights they would say that human rights matter. The question then arises: How is it that those same people watched with unconcern as David Hicks languished for years in Guantanamo Bay without charge and without trial? How is it that they watched with unconcern for years as innocent men, women and children were locked up indefinitely in desert jails merely because they were fleeing the Taliban or Saddam. Hussein? How is it that we have managed such enduring complacency to the plight of the aborigines whose land was taken and whose children were stolen? How is it that we are so indifferent to the draconian effects of the anti-terror laws as they are applied to Muslims in the Australian community, when we would not tolerate similar intrusions on our own rights?

The answer I think is this: Australians subconsciously divide human beings into two categories: Us and Other. We think, perhaps subconsciously, my rights matter, and so do those of my family and friends and neighbours, but the human rights of others do not matter in quite the same way because, (without quite saying it) the Others are not human in quite the same way we are. It is dangerous thinking and profoundly wrong.

We have human rights not because we are nice or because we are white or because we are Christian but because we are human. That’s the sticking point which makes it possible for people to acknowledge that human rights matter and yet resist the possibility of those rights being protected by law.

They do not work
One of the favourite back-handers to dismiss a Bill of Rights is that they don’t work: after all, the argument goes, the USSR had a splendid Bill of Rights, and so does Zimbabwe, but look what has happened in those countries. They have a point, of course, but it is not a point about a Bill of Rights: it is a point about the rule of law.

No Constitution, no Bill of Rights, no statute, no other document, can protect rights unless the rule of law is strong. If the political opposition is weak or absent, if the media are cowed or complacent, if the courts are not fearlessly independent, the promises contained on bits of paper will achieve nothing. That is not our problem in Australia. Our Judges are competent, hard-working and independent of the other arms of government. While I have disagreed with many judgments in Australian courts, I have never doubted the honesty or integrity of our judges. The same is not true of the USSR or Zimbabwe.

Guantanamo Bay provides both a challenge and a demonstration of this point. President George W Bush chose Guantanamo Bay in Cuba as a place of detention specifically to avoid the reach of American courts and the principle of legality; he chose it in order to place detainees beyond the protection of the Constitution and the Bill of Rights. He failed. In case after case, the US Supreme Court has held that the protection of the Constitution reaches Guantanamo.

Although it has taken a long time to expose the fraud and cruelty of Guantanamo, the fact that Bush chose Guantanamo, rather than some place on American soil, is mute testament to the power of a Bill of Rights and the rule of law. Bush chose Guantanamo in order to side-step the rule of law. The Supreme Court has gradually dismantled that plan. Most recently, in the Boumediene case , the Supreme Court struck down that part of the Military Commissions Act which purported to deny Guantanamo detainees the right to seek habeas corpus. Habeas corpus is the legal equivalent of a canary in the coal mine: when governments interfere with the right to challenge the lawfulness of a person’s detention, you can be sure that all is not well.

Lawyers’ Feast
The ‘Lawyers’ Feast’ argument is a popular one, because everyone hates lawyers, and anything which is going to make lawyers rich and happy is obviously a bad thing. The Lawyers’ Feast argument is a coded way of saying that lawyers want a bill of rights because it will generate lucrative work for them. The argument is false.

In Australia today, the people who need a bill of rights-the people whose rights are denied or disregarded-are almost always at the margins of society. They cannot afford to pay lawyers. Most human rights work in Australia today is done for no fee. Some is funded so that the lawyers receive some payment, usually a very small percentage of ordinary rates. No-one does human rights work to get rich, because human rights work cannot make you rich.

The lawyers for Mr al Kateb fought all the way through the court system up to the High Court, for fees which amounted to about 20% of what they could have charged in any ordinary case.

While it may be extraordinarily hard for the conservatives to grasp this, most lawyers who do human rights work do it because they believe in the importance of justice, and a denial of a person’s human rights is a terrible injustice.

Conclusion

The Universal Declaration of Human Rights was entered into force on the 10th December 194-60 years ago this year. Doc Evatt presided over the General Assembly that day.

Australia now is the only Western democracy which does not have a Bill of Rights. What are we afraid of?