Constitutional enshrinement of human rights - the time has come.
ACFP's submission to the current parliamentary Inquiry into Australia's Human Rights Framework
The Australian parliament is currently conducting an Inquiry into Australia’s Human Rights Framework. The central intention of this is to decide whether the Human Rights Framework adopted by the Labor government in 2010 and abandoned by the subsequent Coalition government should be re-established and, in particular, whether this time around it should include a Human Rights Act.
Australia is the only democratic country in the world without a charter of human rights in either legislation or its Constitution. So despite the fact that Australia is a signatory to all the major human rights treaties made at the United Nations since we became a member in 1945 and despite the fact that the Australian parliament has ratified these treaties (which formalises the nation’s consent to be bound by them), Australians still have little to no security of their human rights in domestic law. Rights that have at least in theory been available to Australians in international law for decades have been withheld from them at home. People in just about every other country enjoy the security of civil, political, economic, social and cultural rights. Australians enjoy no such security.
The harm that has been done to Australians and others as a result of the lack of a legal framework for human rights at the federal level is now extraordinary. It is exemplified in shameless government policies and executive decisions in relation to:
detention and outright cruel treatment of asylum seekers and their children;
mixing of adult and juvenile offenders as well as accused persons and convicted persons in jails and detention centres;
the withholding of compensation for wrongly convicted persons;
the wrongful persecution of whistleblowers who make genuine public interest disclosures;
the withholding of compensation of Indigenous peoples for the theft of their lands and children;
the lack of protection of Australians and others from climate change; and
the lack of protection of Australians from propaganda for war.
Executive decisions on these and other policies this century have resulted in a serious deterioration of Australia’s reputation as a decent nation. We now live in a country that has become internationally renowned as a serial abuser of human rights. More than that, the fact that we have almost no human rights in either Commonwealth legislation or the Constitution signals to other countries that we can’t be trusted in international negotiations. They reason that if Australia does not respect the rights of its own citizens, how can we be relied upon to respect theirs in any agreement we might seek with them? So the impact of our legislative framework and policies is not confined to the loss of rights for Australians and others. It extends to the loss of Australia’s bargaining power globally in building free and fair trade agreements, a sustainable world and domestic economy, fair participation in and cost-sharing for mitigation of climate change, and a credible reputation for leadership in prevention of war.
In the absence of constitutional imperatives on human rights, Australian parliaments and executive governments have sunk into a pattern of:
repeatedly evading international law on human rights;
suspending their obligations in domestic law; and
generally using legislation to limit and deny human rights.
By this sort of conduct Australian parliaments and executive governments have proven that in the absence of constitutional constraints they cannot on the whole be trusted to honour their obligations to protect and uphold human rights.
We have reached what most Australians would hope is the nadir of our history as a decent nation.
What can we do about it?
The parliamentary inquiry is an opportunity that we are not likely to get again; so Australian Community Futures Planning has made a submission suggesting some things that would reverse the decline in decency and our international standing.
We have submitted the following comments:
It is obvious that the government should establish a legal framework for human rights in Australia but that the 2010 Human Rights Framework will not suffice to protect the human rights of people in Australia.
A federal Human Rights Act should be added into the 2010 framework as a minimum. There will be no advantage to Australians if the government chooses to re-establish the 2010 framework without a Human Rights Act.
Regardless of whether the government chooses to include a Human Rights Act in a new legal and policy framework, it should be acknowledged that human rights cannot be secured for Australians if they are not also enshrined in the Constitution. Constitutional enshrinement of (a) all rights already granted to Australians in international law and (b) all obligations already accepted by the Australian government as a State Party to these international laws, is the only way to ensure that governments have in fact granted Australians and anyone who comes here the full measure of their rights under international law and will refrain from abuse of those rights.
Australians have been waiting for more than five decades for access to rights that have been granted under international law but have nevertheless been withheld by Australian governments in domestic law. Australian parliaments have ratified most of the international treaties on human rights but executive governments have a history of either refusing to confer human rights on Australians and others and/or enacting legislation that enables the government to withhold or rescind basic rights (even when legislation has been enacted to protect those rights, such as the Racial Discrimination Act or the Sex Discrimination Act). This runs counter to official government policy which states that human rights are considered to be “inherent, inalienable and universal”. In official federal government policy they are considered to be “inherent as the birthright of all human beings, enjoyed by all simply by reason of their humanity rather than granted or bestowed; inalienable in the sense that they cannot be given up or taken away; and universal as they apply to all regardless of race, colour, gender, sexual orientation, gender identity, language, political or other opinion, national or social origin, property, birth, age or disability.”
In formal policy Australia also considers human rights to be interrelated, interdependent and indivisible – meaning that there can be no preconditions placed on their enjoyment. And yet, the federal government acts contrary to its own official policy by persistently refusing to grant human rights to Australians in law.
Australian governments have built up a disgraceful track record of abuse of human rights. This record is detailed in Chapter 6 of my recent book, The People’s Constitution: the path to empowerment of Australians in a 21st century democracy. Commencement of a program of community engagement to enshrine human rights and obligations in the Constitution would signal that the government is at last willing to reverse this disgraceful record of cruelty and injustice. Genuine open engagement with the Australian community on constitutional enshrinement of human rights would show that the government is intent on respecting those who elect them to positions of power and is committed to their wellbeing and security.
Arguments by some that human rights are protected by common law are false as are arguments that human rights will be sufficiently protected by legislation designed to reinforce “parliamentary sovereignty” rather than the sovereignty of the people. The Australian Human Rights Commission has submitted that a Human Rights Act should be based on a model requiring “formal dialogue” between the executive, the legislature and the judiciary, with each branch of government sharing responsibility for respecting and protecting human rights. They assert that this will “provide [the much-needed] accountability for executive decision-making through judicial pathways, without infringing on parliamentary sovereignty”. ACFP has, however, submitted that while this model of legislation is desirable, the maintenance of parliamentary sovereignty is not a fundamental consideration when it comes to human rights. When considering human rights it is the sovereignty of the people that matters, not that of the parliament. Too much deference towards the parliament by the judiciary has clearly left Australians exposed to loss of their rights. It has left too much room for parliaments and executive governments to behave arbitrarily and without accountability. This has occurred because the Constitution does not prohibit government or parliamentary disregard of human rights. Parliamentary sovereignty is not desirable if it can be exercised arbitrarily, and that is exactly what can still happen if no constitutional imperative is placed on the parliament and executive government to uphold human rights. Unrestrained parliamentary sovereignty is certainly not desirable in a democracy, especially if – as is the case now in Australia – the judicature cannot exercise appropriate checks on the arbitrary use of power by the parliament or executive government. A dialogue model may help it exercise some influence, but in the absence of a constitutional limits, the government will still be free to disregard rights when it is politically expedient. As far as human rights are concerned Australia’s current Constitution leaves the courts powerless to exert appropriate checks on the misuse of power by the parliament and executive. In this unfairly balanced distribution of powers, parliamentary supremacy is not all it’s cracked up to be. It leaves far too much room for abuse of power.
Improved protection for the rights of Australians might be achieved on an interim basis if the government adopts the AHRC’s recommended “parliamentary model based on dialogue” but the rights of all persons in Australia will still be at risk to an unacceptable degree. To the extent that the concept of parliamentary sovereignty gives parliaments the right to “make or unmake any law”, it embeds the ongoing possibility of unjust laws and arbitrary suspension of just laws. It is fundamental that if human rights are inalienable and if we are to be protected from the potential for injustice by an arbitrary sovereign (parliamentary or monarchical), then we need a system of laws and law-making which will prevent parliaments and governments from overriding the rights it otherwise declares to be universal and inalienable. The time has come for constitutional enshrinement of human rights.
The government should consider working towards a human rights framework in which it is a key principle that: (a) the people of Australia (not the parliaments or the executive governments or the judicature) are to be accorded sovereignty in this particular area of law; and that (b) this sovereignty for the people can only be protected by constitutional enshrinement of all rights and obligations in the human rights treaties and declarations to which Australia is already a State Party. This offers a safe course for both the people of Australia and elected parliaments inasmuch as instruments of international human rights law to which Australia is a signatory (and that in most cases the parliament has long since ratified) already set out the conditions on which the human rights in the treaties may be legitimately limited or temporarily suspended.
There is no risk to Australians or to the parliament if human rights and obligations in the international treaties are enshrined in Australia’s Constitution. There is considerable residual risk if the government confines itself to simply enacting a Human Rights Act, especially if rights are selectively limited by the Act and if the executive government retains the power it currently exercises to disregard human rights in administrative decisions. The dialogue model suggested by the Human Rights Commission should reduce this risk somewhat, but it will not eliminate it. It’s a good start but not a safe finish. The only thing that can provide that safety is constitutional enshrinement of all human rights and government obligations to uphold those rights.
A model for safe enshrinement – safe for people and parliaments – is set out in Chapter 6 of The People’s Constitution: the path to empowerment of Australians in a 21st century democracy by ACFP’s Founder, Bronwyn Kelly. This model has the added advantage of creating the only possible basis for a peaceful coexistence of sovereignties for Australia’s First Nations and non-Indigenous Australians.
Make a submission
Australians should note that there is still time to make a submission to the Inquiry into Australia’s Human Rights Framework. Consultation closes on 1 July 2023. You can make a submission at this link.
Read ACFP’s full submission to the Inquiry into Australia’s Human Rights Framework
The above is an extract of a larger submission to the Inquiry. Read ACFP’s full submission here.