An Australian Charter of Human Rights

Background

The Evatt Foundation was founded in 1979 as a memorial to Dr Herbert Vere Evatt with the aim of upholding the highest ideals of the labour movement -- equality, democracy, social justice and human rights. Among many achievements, 'Doc' Evatt led the Australian delegation to the meeting that founded the United Nations in San Francisco, played a major role in framing the United Nations Charter and remains the only Australian ever to have been elected President of the General Assembly.

It was during Doc Evatt's presidency that the General Assembly adopted and proclaimed the cornerstone of modern human rights protection, the Universal Declaration of Human Rights. The Evatt Foundation upholds the ideal of universal human rights. In light of the major role that Australia played in the adoption and proclamation of the most famous declaration of human rights in history, it is a shameful irony that this country is now the only democratic nation in the world that does not have a charter or bill of rights.

Other treaties and conventions have been introduced since the adoption and proclamation of the Universal Declaration, the two most important of which are the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR), both of which have been ratified by the Australian government. Without prejudice to the ICESCR, the Evatt Foundation believes that the ICCPR should now be adopted by legislative enactment.

Current human rights protection

Many authorities have detailed cases where individuals have had their human rights violated in Australia. Suffice by way of illustration here to cite the political climate following the 2001 terrorist attacks on New York and Washington, which produced a number of instances where the Australian government and its departments took action in contravention of the ICCPR.

The detention of Dr Mohammed Haneef in 2007 by the federal police for 12 days without charge is just one example of an agency working on behalf of the government which has been in blatant contravention of Australia's obligations under the ICCPR. Dr Haneef's detention without charge was in violation of Article 9 of the ICCPR, which declares the rights of individuals against arbitrary detention and affirms the right to prompt appearance before a judicial officer to consider the merits. The fact that an arm of the Australian government can blatantly ignore its obligations under international law is a prime example of why this nation needs to codify the human rights protections in the ICCPR and extend them to all people within its jurisdiction.

The national and sub-national security legislation that was enacted in the wake of the terrorist attack in the United States has also gone well beyond what is needed to meet the perceived threat, such that the legislation threatens the liberties of all Australians. In defiance of the principles of procedural fairness, for example, where a person is charged with a terrorism offence, evidence can be given to a court but neither to the defendant or his or her lawyer on national security grounds. ASIO can also detain a person for up to seven days for questioning, even though he or she is not suspected of a terrorism offence. Individuals can be gaoled for five years if they disclose to anyone what happened to them within two years. These practices blatantly offend universal human rights.

Incorporating the ICCPR would be a major step toward ensuring that Australia is a nation committed to upholding the rights and freedoms it has often espoused on the international stage. Given Australia's key role in the establishment of the United Nations and the proclamation of the Universal Declaration, the lack of knowledge about human rights within the community is startling. The enactment of an Australian Charter of Human Rights would raise the consciousness of the community about rights and encourage their promotion and respect.

Legislative enactment of the ICCPR is also necessary to raise awareness of human rights and encourage their respect within Australia's governments. The enactment of a charter should act as a 'filter' for legislation to prompt elected officials and those who implement their policies to consider human rights. Enabling elected officials to utilise a charter as a tool to guide them in drafting legislation would constitute a maturing of the Australian political system whereby rights would not be neglected or rendered an afterthought, but become fundamental in the development of the nation's laws.

Recommendations

Legislative enactment

The Evatt Foundation recommends that an Australian Human Rights Charter be a legislative enactment of the United Nations International Covenant on Civil and Political Rights (ICCPR). This legislation should be robust and provide for the protection, respect and promotion of civil and political rights. The legislation should empower federal courts to hold that State and Territory laws inconsistent with the human rights legislation are invalid and that other federal legislation is to be read subject to the legislation giving effect to the ICCPR. Australia has signed and ratified the ICCPR and its incorporation into domestic Australian law would now provide the basis for the comprehensive protection of human rights.

Education

The Evatt Foundation recommends that human rights form an integral part of civic and social education within Australia. Such an education framework should focus on Australia's history of human rights protection, both domestically and internationally, while encouraging critical reflection on where the rights of citizens and residents could be better protected. The introduction of a Human Rights Charter and the commitment to human rights education within schools would help develop a human rights culture that would further empower the Australian people and contribute to the enhancement of democracy.

Further information

Should there be any queries about this submission, the appropriate contacts are the Hon. Ron Dyer, Vice President and Chair of the Evatt Democracy and Human Rights Committee (phone 02 9487 3787), or Ms Dianne Hiles, the Foundation's Executive Officer (02 80901170).

Submitted on 9 June 2009.

Also on the Evatt site

As part of the Fringe Program of the 45th National Conference of the Australian Labor Party, the Evatt Foundation proudly presents an address on "Labour & Human Rights" by Geoffrey Robertson QC in the auditorium of the Sydney Trades Hall, where he will be introduced by Julian Burnside AO QC. This address is a further contribution to the debate that was commenced by the Australian Attorney-General in presenting the Annual Evatt Lecture in 2008, when he announced a national consultation process on the protection and promotion of human rights. Among other activities, to mark the 60th anniversary of the Universal Declaration of Human Rights on 10 December 2008, the Foundation in association with Sydney University Press published Moving in the Open Daylight: Doc Evatt, an Australian at the United Nations, by Ashley Hogan (with a foreword by Michael Kirby).

You can read more about the Evatt Foundation and human rights by clicking on the following links: