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Human rights good for Canadians but not for Australians
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If you are in Canada, reading the ponderous and guarded thoughts of Frank Brennan in this morning’s Australian — on whether or not Australia should have a charter of rights, feels weird. Because Canada is a nation where the idea of not having a Charter of Rights and Freedoms is like the idea of it becoming the 51st state of the US. Frank Brennan and his fellow fence sitters on the question of a human rights law to protect vulnerable people and communities, should spend time walking the highways and byways of Canada from Vancouver in the west to St John’s Newfoundland in the East, talking to ordinary citizens. What they will find is that Canadians share with Australians many of the same values and have a similar outlook on life, but they firmly believe that every person in their land is entitled to know that their rights and freedoms are protected by something more than the vague assurances of politicians. The Canadian Charter experience is instructive for those politicians who like the idea of a charter, but who are scared easily by intellectually unethical conservative scare campaigns. Canada first headed down the human rights protection path in 1960 with its first human rights laws. Then there was a Human Rights Act in 1977, and in 1982, Prime Minister Pierre Trudeau introduced the Charter of Rights and Freedoms, which gives constitutional protection to Canadians’ rights and freedoms. At the time, and since then, Trudeau’s critics have sniped at the Charter. It has allowed for judges to have too much power and has lead to a judicial coup d’état over the parliament; radical feminists and environmentalists have used the Charter to push their narrow agendas at the expense of the majority, are two of the most common refrains. The evidence however suggests that the critics were and are wrong. The Supreme Court of Canada, the equivalent to our High Court, plays a major part in the way the Charter works because it is the body that interprets the Charter. But has it taken over from Canadian Parliament as the critics allege? Absolutely not. As the Ottawa Citizen reported in 2007 since 1982, somewhere between 450 and 500 cases based on the charter have made it to the Supreme Court of Canada. Patrick Monahan, dean of Osgoode Hall law school in Toronto, found that challengers were successful in just 35 per cent of those cases. The Ottawa Citizen noted on April 15 “not all those rulings resulted in laws being struck down, since many cases focused on procedural issues such as the need for police to warn suspects of their rights or be more careful about searches and wiretaps”. But most importantly, the Charter has lead to the strengthening of Canadian democracy. Every opinion poll in recent years shows that the majority of Canadians like the idea of having the Charter to protect them against the excesses of the Executive and that they regard the Charter as being an overwhelmingly positive attribute of their country. The average Canadian does not care a fig about the artificial debate which conservatives construct about judges engineering social change when they have a human rights law at their disposal. What they do care about is being able to go to court to compel a government department to fund a family that is being denied access to a program to help them care for a chronically ill grandmother, or a young woman who has suffered brain injuries in a car accident. Frank Brennan has a chance to allow Australians to have the same access to human rights protections as Canadians. But he needs to stop agonizing over straw men constructed by opponents of human rights. |
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9 Comments
One of the leading naysayers of the Canadian charter was a law professor named James Allen. He obviously lost that argument. The same James Allen then turned up in New Zealand when that country introduced its own Bill of Rights, closely modelled on the Canadian Charter. He repeated the same arguments that had been rejected in Canada. New Zealand similarly rejected the hoary chestnuts of “handing power to unelected Judges”, “excessive power to minorities,” “putting the rights of criminals above that of victims” ad nauseum.
Now the same James Allen is given space in organs such as the Australian to repeat these arguments that have been repeated on multiple occasions.
Your correspondent is right to point out that Canadians, after nearly 30 years of experience of their Charter do not share the false arguments of Professor Allan. I would add that after nearly 20 years the New Zealand experience is the same.
I have yet to see even the beginnings of a serious argument that would justify Australia remaining the sole developed liberal democracy not to have a Bill or Charter of Rights. Listening to the arguments of Professor Allan and his ilk one is reminded of the proud mother observing the passing out parade of her soldier son. Look, she exclaimed, they are all out of step except my Johnny.
Sorry, that should read “rejected on multiple occasions”.
So if we get a Bill of Rights or such, will it be treated the same as the Racial Discrimination Act (RDA)?
I live on a “Prescribed Area” under the NTER (Northern Territory Emergency Response) that a few days ago “celebrated” its second anniversary. Under the NTER legislation, the RDA has been suspended and won’t be reinstated until October. FaCSIAH and Minister Macklin have already flagged their intention for the NTER to continue, and will justify this by dressing up such as Income Management (IM) as “special measures” under RDA legislation. Currently a round of “consultations” is being held. My impression is that the true purpose of these “consultations” is part of the Government propaganda assault on remote Aboriginal Australia and have very little to do with “informed consent”.
So yes please! Let us have a Charter of Rights and Freedoms, but let us also make sure that it can’t be suspended willy nilly by any Government driven by ideological or political motives. And please: no “special measures” loophole!
Couple of questions -
Firstly, on what basis does Australia ‘need’ a Charter of Rights and Freedoms?
Secondly, what examples over the past, say, ten years, would such a Charter have been used?
I’ve heard various vigorous arguments for and against but I wouldn’t mind knowing why on earth someone has decided to give us one and how it could have (theoretically) been used the past 10 or so years. (I say 10 or so years because surely the Howard government would have come against at some stage).
Ah yairs, but we followed Canada in recognising native title too, so maybe that’s the rub?
Frank Brennan used to be a champion for rights like native title if vague memory serves.
I don’t know the answers to Julien Marr’s questions. Neither have I had the opportunity nor time to find out what exactly is in such a Charter or Bill.
What I do know however is that the Warlpiri speaking people of Yuendumu could have done with a “right to run their own lives” and the right to “make decisions that affect their lives” as well as a “right to their own identities” and a “right not to be stereotyped and demonised”.
Freedoms?… how about a “freedom from bureaucratic and political bullying”?
And not just under the Howard regime, but also under the current masters of spin.
Spot the difference: Howard/Rudd…. Brough/Macklin… big prizes to be won!
“In Australia, our ways have mostly produced disaster for the Aboriginal people. I suspect that only when their right to be distinctive is accepted, will policy become creative”… Kim Beazley Sr.
A Charter of Rights and Freedoms, embedded in our constitution and above both judges and politicians, is much more important and pressing than achievement of Republic status.
I say this as a staunch Republican.
Perhaps this is a task for Super Malcolm after he comples a couple of years as a politician and seeks another challenge.
Maybe we can resolve this matter in an adult and tolerant manner by inserting an Opt-out clause.
Those that do not want a Bill/Charter of Rights can nominate to be excluded and not enjoy/suffer its benefits/tribulations without effecting those that want some rights.
In this way we can provide every citizen with the most basic of all human rights, the right not have any rights except those that the benevolent government might confer/remove from time to time and election to election.
Julien Marr
Posted Friday, 26 June 2009 at 3:27 pm | Permalink
Julien, may I suggest that you take a good look at the Anti-Terrorism Laws of 2005(keep Dr Haneef in mind); the invasion into the Northern Territory in 2007 (why did Howard feel the need to dispense with the Racial Discrimination Act); take a look at the Children Overboard and subsequent and previous detention of men, women AND CHILDREN, and the then medical/legal knowledge, that too many human beings were subjected to acts of abuse, starvation, deprivation, assault and their physical, mental and human health rights were ignored - they were knowingly trodden on - with calm, callous and cruel deliberation. Then, mentally apply these same behaviours to aboriginal people, people from the Middle East etc; workers in the building industry (subjected to the ABCC) and then take a look at the wonderful judicial system that we boast about in this country. Remember, this makes us different to the “terrorists” etc? Does it? How? Go back into the archives and look at the comments of Alexander Downer and his colleagues re the at least 1 million of us who marched, wrote letters and objected to the invasion of Iraq. Look at the at least 250,000 of us who walked across the Sydney Harbour Bridge in 2000! We were sick of the racism, injustice and cruel history metered out to the original Australians. Now, do you really have to ask that question? Have you not read or listened to anything?
What does our Constitution protect? As far as I can gather, nothing much! It doesn’t even protect our right to vote. Aboriginal people were only alluded to in the areas of flora and fauna! I find this revolting. It’s against every basic instinct I have re the rights of every human being to dignity, equality before the law, equality re fair pay for both sexes; the right to every child in this country to food, shelter and protection before the law, regardless of colour creed or ethnicity.
A Bill of Rights, hopefully would address this. It should go further - that the citizens of this country(Australia) do not over-ride the basic human rights of citizens in another country. I think now of the unjust ‘agreement’ between Australia and East Timor re the oil and gas reserve agreement signed (under duress I believe) with the government of East Timor and the Howard Government. (I remember Downer’s comments when there was ‘disagreement’ from East Timor - “after all we’ve done for them” he said?).That we do not forward guns and military training to any government that is oppressing the people of their country - Burma and Indonesia spring readily to mind? That we seek a just agreement for any minerals/mining etc that Australian companies participate in. That the environment of other countries is not sacrificed for the wealth of any Australian company/individual, or any company that has Australia as an added ‘interest’?
That’s what a Human Rights Law should embrace. I find the invasion, occupation and oppression of the citizens of other countries to be repugnant. I don’t believe, that Australia can hold its head high, while we allow big business, big government or greedy individuals to deny the human rights of others - wherever they are! Unrealistic? Tough! If we don’t uphold this principle, then we don’t have any right to boast of any superiority? That simple really!