Australia is a lone ranger on the issue of a Bill of Rights. The rest of the Western world has one, in some form or other. Never has this gap in our law been more obvious than last year, during the debate surrounding the anti-terror laws. New Matilda is proposing a legislative Bill of Rights in the form of a Human Rights Act.
Opponents of a Bill of Rights argue that Parliament and the Common Law provide the best protection of rights. They argue that introducing such a beast would transfer power to ‘unelected, unaccountable judges.’ They argue that defining rights can limit them.
All of these arguments ignore or dismiss the fact that until recently children could be detained in inhumane conditions under immigration laws. They ignore the potential impact of new anti-terrorism laws on the presumption of innocence, right to silence, freedom of speech and liberty – basic rights we have always taken for granted in Australia.
Are there ethical dimensions of a Human Rights Act? You better believe it!
Thanks to Bill Leak
Ideas about rights trace back to Ancient Greece. Greek philosophers believed in ‘natural law’ – law that was eternal, applied universally and accorded with nature. This concept was adapted by modern theorists including Hobbes, Rousseau and Locke, under the label ‘natural rights.’ ‘Natural rights’ were rights that all individuals had from the time of their birth – they were not dependent on wealth, status or citizenship. The French and American Revolutions were grounded on these concepts.
However, modern theorists acknowledged that, as part of the ‘social contract,’ individuals bargained away certain of these rights in exchange for the protection of the State. The ethical question – how the State should conduct its affairs – arose from the potential for conflict between the rights of individuals on the one hand, and government for the collective good on the other. In the 20th century, legal theorists discussed the need for individual rights to be protected by law by reference to concepts such as the rule of law, equality before the law, and equal access to justice.
Our modern understanding of human rights has developed out of concepts of ‘natural law.’ It emphasises the intimate relationship between human rights and human dignity and how denial of the former causes injury to the latter.
The Preamble to the United Nations’ Universal Declaration on Human Rights (UDHR) states that
recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world.
These sentiments are also found in the UDHR’s progeny, the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR), both of which are were adopted by the United Nations in 1966. It is hardly surprising that the impetus for the modern commitment to the legal recognition and protection of human rights followed the atrocities of World War II and the Holocaust.
Ethical considerations arise when rights come into conflict. Reasonable minds may differ on what rights and interests, individual and collective, should be protected over others. For this reason, open dialogue, consideration, debate, and a robust system of checks and balances is required.
By contrast, when John Howard and Philip Ruddock have been asked about the impact of anti-terror laws on the right to be free of arbitrary detention, the presumption of innocence and freedom of speech their response has been to argue that the new laws protect Australians’ (collective) right under Article 3 of the ICCPR ‘to life, liberty and security of person.’
Implicitly, Howard and Ruddock have made an ethical judgment about the hierarchy of rights in the circumstances at hand. According to their argument, the collective right to life trumps all other rights considerations, and its protection warrants the proposed constraints on other individual rights.
Additionally, Howard and Ruddock are asking Australians to simply ‘trust’ that the powers afforded to the Executive under the new laws will be exercised responsibly. It would appear that Howard and Ruddock have forgotten, or are choosing to ignore, the role that human rights have traditionally played in protecting individuals from the State. The assumption that the Executive will exercise power responsibly is an arrogant one that Australians cannot afford to take for granted.
Similarly, when Prime Minister Paul Keating first introduced mandatory detention for asylum seekers in 1992 his Government made an ethical judgement that asylum seekers abrogated their rights to liberty when they entered Australia other than by official channels. Some might compare this to a murderer abrogating certain rights by killing someone. Others, I among them, would dismiss that comparison on the basis that asylum seekers may have no other choice.
Both examples involve ethical considerations about the interplay of various rights. This is of greater significance if one accepts that the legitimacy of laws depends upon their ethical foundations. A law that is viewed as unethical is one that society will not respect or accept. In a democracy, we can hold the government responsible for such laws, and remove it from power if the laws are not changed. We saw the Howard Government respond to public pressure last year in relation to the immigration laws.
If Australia had a Human Rights Act one suspects that it would have been more difficult for the immigration laws to remain in their draconian form for so long. It would also be more difficult for the Prime Minister to push through anti-terror legislation with limited parliamentary and public discussion about the ethical nature of those laws.
A Human Rights Act would provide an ethical framework for examining new legislation. It would reduce the likelihood of unethical laws and increase the public trust in our systems of law and government.
A version of this article was published in the summer edition of Living Ethics, the quarterly newsletter of theSt James Ethics Centre.
Please download the draft here Human Rights Bill today and let us know what you think. The consultation period is due to conclude at the end of March.
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