The talk about right to rights is not a new phenomenon. For decades, Australia has resisted enacting Bill of Rights at Federal level due to fear of transfer of political power to unelected judges1. Australia is probably the only common law country in the world that does not have a Bill of Rights. While we are continuously reminded about our obligations and responsibilities in obeying the law, which is increasing enforced by the instruments of the state, there is no one statute or constitutional statement that sets out basic rights and freedoms of the Australian people. The justification provided by former Prime Minister was that civil liberties are well protected by ‘three great pillars’ of Australian democracy that is a ‘vigorous Parliamentary System’, an ‘incorruptible judiciary’ and a free and skeptical media’2. Do we really then need an extra statute protecting our rights.
Let me explain what are the basic human rights that require protection? Human rights are rights that belong to all of us as human beings. Human rights recognize the inherent value and dignity of all people. They set out minimum standards for rights of individuals in their relationship with a government, public authorities, public institutions and with each other. Human rights are foundation for freedom, justice, peace and respect and are an essential part of any democratic and inclusive society that respects the rule of law, human dignity and equality. These are agreed set of rights including right to life, liberty, freedom of association, freedom from arbitrary detention and freedom from torture and inhumane treatment.
The test case of Kracke in Victoria has raised and confirmed the importance of having our rights protected as a citizen. Victoria is one of the three states in Australia who has enacted a Victorian Charter of Human Rights and Responsibilities and that came into effect in 2008. In this case, Mr Kracke a 37 year old man suffered from a mental illness (Schizophrenia) and was subject to involuntary treatment order (ITO). As his treatment could be provided to him in the community, the authorized psychiatrist placed him on a community treatment order (CTO). Involuntary means medication provided without consent.
Under the Mental Health Act 1986, the ITO must initially be reviewed within 8 weeks and then periodically every 12 months. CTO’s were to be reviewed every 8 weeks of any extension. In this case, ITO was not reviewed for over two years and the CTO was not reviewed for over one year. The legislation was silent on the consequences of the Board’s failure to review within the specified time limits. The Victorian Civil and Administrative Appeals Tribunal found that the Board breached the human right to a fair hearing of Mr Kracke by failing to review his ITO within a reasonable time frame. It is questionable that would Mr Kracke been able to take action against the Board this successfully without the Charter of Human Rights and Responsibilities 2006.
2 De Percy M, ‘National Security v Civil Liberties: Towards an Australian Bill of Rights’, University of Canberra
The Charter can be seen a s a form of insurance to ensure that human rights are priority for governments when providing services and enacting laws.
Similarly we need our rights protected at national level. An Australian Bill of Right is necessary to provide a legally recognized base upon which citizens can assert a claim to their rights and to ensure that these rights are above ‘politics and arbitrary government action’3.
If we want our rights protected, then this is the time for all communities to get involved in National Human Rights Consultation to push for Human Rights Act at Federal Level. The strong commitment shown by Rudd Government towards human rights in comparison with the former government is remarkable. Even though it is evident that some of our human rights are protected by different legislations like Anti discrimination legislations. However there is need for all our human rights to be protected by one uniform legislation in accordance with Universal Declaration of Human Rights 1948. It is incredible that Australia was at the forefront of the human rights movement when the Universal Declaration of Human Rights was adopted and yet Australia is probably the only common law country with no Bill of Rights at national level.
Post 9/11 and Bali Bombing there are about 40 counter terrorism legislations that were enacted in the interest of national security and in such a haste that the civil liberties in this essence was largely ignored. My intention to write this article and stress upon our communities to actively participate in national human right consultations is to raise awareness as to how important it is for us to have Bill of Rights. I will discuss in more detail how police powers, ASIO Powers and ASIC powers have increased since 9/11 and how our rights are affected by these laws, in the future publications.