When I was younger, I was very taken with the idea of a Charter of Rights for Australia. I simply couldn’t fathom the fact that Australia didn’t have certain rights in its Constitution. But now that I’m older, I’m not so sure that a Charter of Rights is the panacea for all ills in society. I know that human rights are malleable, and that one human right can conflict with another.
For a particularly thorny and controversial case, see The Queen v GJ [2005] NTCCA 20, a case involving an Aboriginal elder and a young Aboriginal girl aged 14 or 15. The girl had been “promised” to the elder when she was a baby, but did not want to marry him, but her grandmother sent her to his house. In the event, the elder was charged of offences including assault (with a boomerang) and sexual intercourse with a child under the age of 16. The trial judge sentenced the elder to one month imprisonment (with a suspended sentence) because he found that the elder was behaving in accordance with customary indigenous law. However, on appeal, this sentence was overturned.
Human rights do not provide a clear answer to a case like this. On the one hand, the elder could be said to have a right to continue to practice his own culture in a society where he made up an ethnic minority. On the other hand, the girl could be said to have a right to be free of inhuman and degrading treatment, and to have her rights treated as equal to any other child, regardless of her race or religion, and not to suffer because of her status as a woman.
I’m thinking about these issues because the Charter of Human Rights and Responsibilities Act 2006 (Vic) comes into force in Victoria today. Do I believe in human rights? Of course I do. I think that there should be a certain amount of freedom of speech (whether I agree with what is said or not), and that there should be freedom of religion, and so forth. But I can see that in some circumstances it is not easy. Say there is a group who argue that a certain religious group controls society and that they should be banned from Australia. This is something to which I have a very deep seated revulsion on a personal level. Obviously there is a right on the part of the group to freedom of speech, but there is also a right of the people of that particular religion to be free from vilification and discrimination. How to balance it? I can never quite make up my mind.
Peter Faris QC has written a piece which is extremely critical of the Charter of Rights. He sees it as a gravy train for lawyers, with little real practical benefit for the people.
I am not quite sure that the scenario is quite as dire as Faris QC portrays it. I went to a site for Conservative Lawyers in the UK (a scary concept). There I found a paper by two barristers which outlined the benefits and detriments of the Human Rights Act 1998 (UK) in the United Kingdom. (I had to overcome a personal prejudice – a lifelong dislike of Tories arising from my schooling in England). I found it to be a fair paper. The lawyers made five provisional conclusions:
- There was more uncertainty in the outcome of litigation where public authorities were concerned, particularly concerning the liability of public authorities in tort.
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More time and expense is incurred in arguing Human Rights Act points than is probably justifiable, although this is likely to settle down.
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There has been some “refreshing” of the common law with arguable benefit in some areas although the common law was generally regarded as being sufficiently dynamic to bring about changes absent the Human Rights Act.
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There is greater freedom for judges to make new law in areas where the law is either uncertain or possibly antiquated.
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Some cases where claimants would have failed before the Human Rights Act can now succeed. What success means however is still somewhat uncertain. The actual remedies available under the HRA are still a matter for development.
At [50] of their paper, the barristers conclude:
The approach of the Courts to the Human Rights Act has not perhaps been as radical as some feared. But we do venture to suggest that the effect of the Human Rights Act has been considerable in terms of the way in which public authorities organise their affairs. Whilst much of the evidence is anecdotal and perceived, sometimes, through the possibly unreliable medium of the popular press, there nevertheless seems to us to be a significant body of evidence that in a number of areas public bodies fearful of human rights violations are being unnecessarily elaborate and defensive in their response. This is very much a mirror of what was covered by the all party parliamentary enquiry into the so-called Compensation Culture. There it was concluded that the perception of a compensation culture affected the way people behaved notwithstanding the fact that there was no real evidence of an increase in compensation claims.
I am not against human rights per se, but my fear is that incorporating human rights into legislation may actually mean that governmental bodies try to obfuscate their actions from a fear of potential legal action. I would not be as negative as Faris QC, and I can see some benefits in human rights legislation. However, I cannot help thinking of freedom of information legislation, which has led to governmental bodies trying to increase the amount of material which is “off-limits” and exceptional. The case of McKinnon last year (about which I wrote a post) is an example of the way in which FOI can be manipulated to hide information. Similiarly, I worry that the net effect will be an unsavory one: governmental institutions will attempt to circumlocute human rights rather than upholding them.
The Legal Soapbox 
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At the outset, can I just register a personal opinion that Peter Faris is the most bigoted and ignorant person ever to write “QC” after their name. His pieces in Crikey are ridiculously irrational and silly, and his support of a particular position is a powerful argument against that position. In my personal opinion.
As for the Charter of Rights issues – it seems somewhat circular to me to say that it would be negative for government departments to have to worry about breaching it and to potentially be diverting resources towards hiding possible breaches. That situation would be a positive outcome to me, because it would mean that the normal standard has become respect for human rights as the default and in order to ignore human rights some kind of deception or extra work would be involved. It would not be good for departments to be attempting to avoid the operation of a Charter – but to move the problem from ‘no rights’ to ‘agencies not respecting established rights’ seems like a positive step, and means that the next step is simply to put in place mechanisms to limit the ability of government bodies to do so.
After all, government departments are under the control of the government.
To me this is an immensely positive step for Australia. We are virtually alone in the civilised world in not having a bill of rights of any kind. The accountability mechanisms built into our system of government have, in a sense, broken down as a consequence of the party system and it’s rigid grip on parliament in this country – ever more power has been ceded to the executive, with parliament simply rubber stamping decisions which have already been made. It’s easy to forget that this is not how it was meant to work, and furthermore that the senate was meant to be an independent house of review, not a party-political second rubber stamp.
So to me anything that creates more scope for review of the actions of the executive (by way of the departments it controls) is a good thing.
I can see the force in your argument, Paul. As far as I’m concerned, whether the rights are enshrined in a Charter or not, they are all rights which we should have according to the rule of law and the operation of democracy. Enshrining them in a Charter doesn’t really change that, it just makes it explicit, so that a government agency can’t deny it.
I think your comments have lead me to realise what my objections are. In principle, I am entirely in agreement with you. But in practice, I see that there may be both benefits and detriments. There are possible benefits for the people of Victoria…if they have the resources to litigate, and if they are able to mount a winning argument. However, there are always going to be competing policies: right of individual freedom versus right to community safety, for example. It’s not always going to be a situation where the individual wins against the government. Possible detriments include making the operations of government agencies more costly and potentially creating a situation where they actively try to avoid according human rights.
I guess another reason that I am a little worried about human rights is that there are always disingenous individuals who use them cynically – I am reminded of the British terrorist suspects shouting “This is against my human rights” as they were arrested. If these men were proven to have intended to commit terrorist bombings, then this was a pretty cynical thing to say. Nothing could be more of an infringement of human rights than a terrorist bombing harming and killing innocent civilians. Of course, they still should be treated with due process and like any other suspect. But they are trying to destroy the very rights upon which they are relying.
Think I’m being neurotic saying that human rights could be used cynically? An article last year on the topic mentioned that one of the surprising effects of the Human Rights Act in the UK was that rape suspects were given a right to personally cross-examine their victims because this was their “human right”. I tend to think this is a human right that should be denied on the basis of the trauma to the alleged victim.
I’m not totally against human rights legislation, I just don’t think it’s 100% positive. Like everything it has positives and negatives. Perhaps the positives outweigh the negatives, but I’m not sure yet. I remain dubious.
By way of side comment, another reason that human rights discourse annoys me is that I sometimes feel that a certain individual’s human rights get blown out of all proportion. I am so thoroughly sick of David Hicks. No, I do not think that the US government had a right to detain him without charge, and I’ve said so before in a previous post. I’m glad he’s been released back to Australia, but I’m also glad that he is subject to a control order. I feel that there has been a reaction by some which has gone too far the other way. Infringing a person’s human rights is a bad thing. But it doesn’t make the person a nice person, and it doesn’t make them a hero. I think that there are others who are more deserving of our sympathy and admiration, and others whose present need for protection of their human rights is more severe (indigenous children spring immediately to mind). Just had to get that out of my system. The press coverage has been giving me the pip over the last few days.
Funnily enough though, despite the lack of a written bill of rights, we as citizens do quite well in ensuring our freedoms and rights are respected.
Govt departments are a side issue to this question imo – the real issue is the impact of a society on your individual rights. The action of the executive is subject to many opportunities of review, both through the Court and other avenues (media, Parliament, internal etc).
My view is you cannot believe your individual rights are paramount and live in a society of individuals. eg I might assert a right to have free passage along a thoroughfare, and therefore make up my own traffic rules and not pay tolls etc, but did I pay for that road? If I run a red light, in observance of my stated paramouncy right, did I commit an offence? A silly example, but take any individual right, such as free speech, or the right to defend oneself, and you’ll find countless reasons to limit that right.
LE did so herself. Why shouldn’t an accused have the right to defend themself? The criminal charge is irrelevant to the question of the existence of that right.
Free speech? Try and defame someone. Or vilify a race. Or yell at the taxi driver.
If govt departments are not accountable, that is a failure of the Westminster and Court systems, and not through lack of a bill of rights.
“Funnily enough though, despite the lack of a written bill of rights, we as citizens do quite well in ensuring our freedoms and rights are respected.”
Haneef? Hicks? All those Australian citizens who were locked in detention centres? Those guys who were illegally detained by ASIO?
One must distinguish “the white middle class majority is doing quite well” from “the vulnerable, victimised and marginalised are doing quite well”. The former doesn’t need a bill of rights to protect it – it IS the government, in a sense. The latter do.
LE –
So I guess that leads to two key issues:
1. how are ‘human rights’ to be defined?
2. is it better to identify rights in principle even though they will be breached, or leave them unidentified?
As for Hicks, I don’t see too many people who think of him as a hero. The fact stands that he has never had a criminal trial and that he was subjected to torture for 5+ years with our government’s consent. So he is symbolic, rather than heroic.
To me all of this comes back to one question: does the government own the people, or do the people own the government? So a bill of rights is a powerful statement that the people own the government, and that it’s “rights” are subject to the rights of the people. In other words, that it is elected to represent, not to rule.
Ergh… “its” not “it’s”.
Defining an exhaustive list of human rights has always seemed difficult to me. I think I’m very much a common lawyer in that regard. I prefer these things to grow organically than be enacted. Possibly, my problem with the Charter of Rights stems from my distrust of statutes, and my preference for judicial discretion. Perhaps then, an Equity/common law lawyer (no problem with fusion for this little black duck).
And what about the question of responsibilities? A school teacher of my acquaintance had a very unpleasant student in her class who sexually harrassed the girls, racially vilified students belonging to ethnic minorities, and bullied all mercilessly. When the teacher remonstrated with this boy, he said “You can’t touch me, I have Rights, you know”. The teacher replied that the boy also had responsibilities not to interfere with the learning of others and not to bully or hurt other students.
I think that sometimes this is forgotten. Perhaps it’s what irritates me when alleged rapists and terrorists rely on human rights. I reiterate that I believe they still have to be treated fairly and accorded due process. But if the allegations are proven to be true, these people have violated the human rights of others in terrible ways. They have abrogated their responsibilities to other members of the community. It needs to be made clear that it is not just a “one-way” process whereby we accord people with rights. People (and governments) also have responsibilities.
As for Hicks – I just wish they’d leave the whole thing alone. Yes, what the Howard government did was bad. Unfortunately, when a citizen is arrested in a foreign country allegedly siding with enemies, it’s a bit of a slippery area. It’s not like we could challenge the decision of the US in Australian courts, so rights legislation wouldn’t have made any difference. Of course, the trial process was successfully challenged in the US.
Perhaps another thing that makes me worried about rights discourse is that the US has some very strong statements of human rights in its Constitution, but a convenient habit of breaching human rights when it suits it to do so.
I think Hicks is a sad man who joined radical Islam to compensate for his shortcomings. I do not think it is fair that he was incarcerated for so long without charge, and then charged with retrospective crimes, but that’s about it. I don’t think he deserves any more attention than that. What’s done is done. It’s time to move on, and hope that the new government is made of better stuff.
For me the issue is pretty clear: the rights of the girl clearly trump the tribal traditions. She ought not to be required to marry the old man. I wouldn’t prosecute the man unless he insisted on having the girl against her will. On the other hand, if the girl agreed to the marriage, I would allow them to get married.
Forcing a 14 year old child to marry and have sex with an adult is DETESTABLE regardless of tradition or history. Primitive practices like this will continue to be the subject of such scrutiny by modern laws as humanity evolves beyond their animal origins.
One might also think it their inalienable right to commit mass murders on another group through “tradition”, but we as a species have begun to see acts like this as barbaric on a global scale.
Hmm, well I think that at least in the first case, if we think that all humans are equal and have inviable, intrinsic rights, then the girl was being abused regardless of what cultural traditions might state. No one should have to commit to something against their will and, frankly, there is no moral way to justify that “tradition” or “ethnic culture” holds precedent over this. Of course, legal interpretations may not come to this same conclusion.
That said, it does seem to be a rather immense task to come to an exhaustive list of human rights. While we all agree that inalienable and necessary rights exist, we can’t seem to decipher as a community where these rights begin and exist. The old adage, “All men are created equal” is a starting point, but past that we seem to falter in the face of real life and an amaranthine scope of cultural diversity.
In regards to the actual legislation of rights in your case, I still can’t help but feel that this is a positive step. Certainly there will be room for revision, and the effects of this may not be all constructive. However, the fact that this step is even being taken is beneficial to progress society into change, and it pushes us to reflect upon human rights and how we might evolve our laws concerning them even further. Optimistically, anyways.
Dr Haneef was never illegally detained, by ASIO or the feds. I think you mean that socialist candidate who got 30 votes last election and lost his defamation court action. The tourist to Pakistan who cannot tell you where he stayed there (ie rellies, hotel, anything – just “around”).
ASIO never detained Hicks. They interviewed him while he was in custody of the US govt.
Hicks was never illegally detained – he was captured in a declared war zone as an enemy combatant. You need to look up the Geneva Convention on mercanaries and see how he should have been treated (ie shot without trial), compared to what he was given (ie celebrity status amongst the moist left). I’m all for having him tried fairly, just remember he pleaded guilty, and his letters home to dad certainly paint his story better than anyone else.
Hicks is a terrorist – period. He should be closely watched until he no longer wastes oxygen. (remember 2 other freed gitmo fellows blew themselves up on 7/7 killing 2 aussies). It would also be nice if someone remembered the 2 kids he abandoned and has left the taxpayer to support. I’m sick of him being used as a flogging horse when he actually got much more than he ever deserved.
In terms of the GJ case, the poor girl certainly did not consent to the marriage. I understand that she had formed a relationship with someone her own age, and this was regarded as wrong given her “promised” status. So her grandmother sent her to her “promised” husband against her will. The elder was darn lucky not to be charged with rape, I think. He did not realise what he was doing was illegal, and indeed under his own beliefs, he was entirely justified in what he did, but that doesn’t make it okay in my view.
I certainly agree that the girl’s human rights should be more important than the elder’s, but obviously, the trial judge believed the balance lay the other way.
In terms of the US treatment of Taliban fighters, I don’t think incarcerating these fellows without charge did any good. Indeed, it just gave terrorist idiots another “excuse” as to why the West should be blown up, and what is more, it was rank hypocrisy on the part of those who were trying to enforce democracy, because such actions were not according to the rule of law.
I think being locked up for 6 years without trial would be terrible. If I didn’t have a family to live for, I’d almost rather be shot on the spot (seriously).
That being said, I have very little respect for someone like Hicks who swallows Al Qaeda/Taliban rubbish. I’ve written a blog post on a piece which seeks to explain how second and third generation men of Pakistani/Indian background may have been drawn into radical Islam, but it seems to me that those reasons don’t apply to Hicks. He seems to me like a stupid young man who just wanted an excuse to hurt people and lord it over them (particularly women). His letters home give a most unattractive picture:
Doesn’t mean he should be treated without due process, but to my mind, he shouldn’t be given the celebrity status which some sections of the media are giving him at the moment.
I think this is a classic example of focusing on the individual rather than the principle. To me, what separates (real) western justice and especially English/common law justice from the rest of the world is its absolute requirement that the nature of the individual not be permitted to prejudice the individual’s right to a fair trial. Otherwise what you have is populism, hysteria and mob justice.
And, with respect, many of the above remarks demonstrate the latter attitude:
“the girl’s human rights should be more important than the elder’s”
“It would also be nice if someone remembered the 2 kids he abandoned and has left the taxpayer to support.”
“it’s a bit of a slippery area”
“I tend to think this is a human right that should be denied on the basis of the trauma to the alleged victim.”
Etc. – these remarks miss the whole point of equality before the law, which is that we agree on a set of objective standards and then apply them objectively to avoid the inevitable clashes between different (subjective) views on what is “right” or “wrong”. Pete M would shoot Hicks on sight and punish him further for the (irrelevant) fact that he abandoned his kids. I totally disagree with both of those propositions – how do we settle who is right? We agree on objective laws, and when someone is said to have broken them we put them on trial and determine objectively and fairly whether they have or have not broken them.
So, for the millionth time: the issue with Hicks is not his guilt or innocence, it is the fact that his guilt or innocence HAS NEVER BEEN TESTED BEFORE AN IMPARTIAL COURT USING ACTUAL EVIDENCE. The absolute softest I have ever seen anyone describe Hicks is as someone who made a “mistake”. I have never seen anyone seriously suggest that he was a good bloke or that he made an intelligent or sensible decision, and I would be interested to see any evidence that any significant proportion of people believe that.
Likewise, if this elder has broken Australian law then hold a trial and make a finding in law. Don’t let your emotional response overwhelm you and convince you that one person’s rights are more important than another’s.
And as for the rape/cross-examination issue – well, once again, this is an issue of definition of the content of human rights and it seems to me that to find that the right to personally cross-examine a victim who is also a witness is not one which necessarily exists in the basic set of rights which we can generally agree exist (or should exist) in the west.
Pete M, it’s scarcely worth responding to some of the nonsense in your post but:
– Haneef’s visa was invalidly cancelled, therefore his detention pursuant to that cancellation was also invalid. In addition there is a very real question as to whether Minister Andrews was guilty of abuse of process in the way he went about cancelling Haneef’s visa.
– ASIO did illegally detain two men according to the NSW Supreme Court: http://www.theaustralian.news.com.au/story/0,,22761252-2702,00.html?from=public_rss – but I suppose that’s fine because they were accused of terrorism and therefore automatically lose all of their rights, correct?
– I did not say ASIO detained Hicks. Australia cooperated in his continued detention, however.
– If I accused you of some random crime and then, with the full authority of the United States and Australia, kept you shackled in a cell for five years and then offered you the choice of another fifteen years of that or ‘confessing’ and being released, which would you choose? It’s just moronic to assert that Hicks confessed in any legally relevant sense. Please answer the above question, I really want to know what you would do.
It is beyond me why those who are most vehement in their defence of western ‘values’ from the evil hordes of terrorism are the ones who are the most eager to impose third world legal standards in our own country and thereby do the work of the terrorists for them. After all, they hate our values and freedoms, right? So why do you want to throw those values out the window? The only way to really fight terrorism is to strengthen, not destroy, the freedoms that we have fought for over the centuries in Britain, France, the United States, and now apparently Australia against those in our own ranks who would take them away.
Paul, I agree rights have to be applied objectively. But my problem is rather different – how do you apply rights when there are two competing rights, objectively applied, without regard to race, religion, morality, politics? (eg, elder and girl, terrorists and the general public or with just about any problem you care to mention). In the end, I still think it comes down to a simple value judgment. The other option is to say “People will always have a right to cross-examine witnesses personally no matter what”. That’s one option, but I don’t feel comfortable with this where a litigant in person who is accused of rape is cross-examining his witness aggressively. How does this balance with a woman’s right to feel safe in our legal system? Feminist principles? I tend to think that there should be exceptions to the general rule. I suspect you’d prefer to make general rules which apply no matter what, from what you’ve said above, whereas I would make exceptions to the rule.
My comment about Hicks’ situation being slippery arose from the fact he wasn’t in either the US or Australia when captured, and therefore his status was somewhat complicated. He wasn’t a member of a foreign army strictly speaking – I’m not exactly sure what he was. Therefore it’s difficult to say whether he was an enemy combatant or not. And then there’s issues of jurisdiction. Not intended to say anything about him personally…
Well, a simplistic (but possibly correct) answer is that when two rights conflict, they cannot both be ‘rights’ in the truest sense – I feel that we must work from the assumption that it is possible to describe a set of rights which are internally consistent with one another when applied across a group of individuals.
So, in this example, perhaps the problem is an over-literal enunciation of the rights of the accused. A more sensible right would be the “right to a fair and impartial trial” (which in fact would bring into play the common law in terms of interpreting what a fair and impartial trial is). By making the right less prescriptive (i.e. not the “right to personally cross-examine witnesses”) it is possible to avoid conflict with other rights, such as the right to access to justice.
This also highlights the many issues which arise when different classes or categories of right collide – e.g. negativist versus positivist.
I would suggest that not only are internally consistent sets of rights possible, but the fact of internal consistency points to universality. I.e. if we can describe rights in a non-conflicting way, we are describing genuinely ‘universal’ rights.
Interesting! I don’t think that human rights are necessarily internally consistent, and I think that’s where we differ. I’ve never thought of it like that before.
What about something like “a right to freedom of political association”? Should we just let crazy right-wing groups associate freely and possibly cause harm to ethnic minorities in our society? Or should we try to put some controls on these groups?
Or let’s keep running with the example from above. Say we adopt a rule that a defendant must have a “fair and impartial trial”. How would you apply that rule to the situation where a self-represented defendant wishes to cross-examine a rape victim in person? If a barrister starts attacking the sexual history of the victim during cross-examination, and it is really just trying to drag the victim’s name through the mud, I think a judge can query the relevance of the line of questioning and ask the barrister to desist. But if you have a self-represented litigant, it’s a lot more difficult; you can’t expect them to have the same kind of knowledge of what’s appropriate, and you can’t force someone not to represent themselves.
How would you apply that rule in the circumstances?
On my web journal several months ago I added a quote from Russell Kirk on the modern Leftist tactic of confusing human desires with “human rights” ; as well as a collection of articles opposing an Australian Bill of Rights”.
Thank you, MCB Esq. Interesting pieces/quotes. The Kirk one prefigures my concern in the comments above about rights and corresponding responsibilities. As Kirk says, you can’t have rights without responsibilities. If everyone has a right to access to decent health care, then somebody has to have the responsibility of providing and funding that health care. I do believe that everyone should have a right to access to decent health care, but in so saying, I recognise that it’s not always that easy, and you have to have available infrastructure and funding which allows that to occur.
Take also the example of the student above, who harrassed other students of ethnic minorities, including drawing a swastika on the Jewish girl’s desk and pulling off the Sikh boy’s turban. That boy has a right to access to education, but the Jewish girl and the Sikh boy also have a right to be free of religious persecution and vilification. Therefore, while the state may have a responsibility to provide this boy with access to education, the student should also have a responsibility not to vilify and persecute students with a different background. Should he be able to be banned from the classroom until he agrees to fulfil this responsibility? The fact of the matter is that he is impinging on all the other students’ right to access to education. The teacher has to spend extra time disciplining him and preventing him from harming and vilifying other students, and less time on teaching other students the information that they need to know.
I am discovering during the writing of my thesis that I have a constant query of academic pieces, namely, “That’s all very nice in theory, but how does it apply in practice?” The same is true of human rights: just how does one apply them in practice?