Tasmania considering human rights legislation

Tasmania is considering bringing in a bill or charter of human rights, following the lead of the Australian Capital Territory and the state of Victoria. It has asked the Tasmanian Law Reform Institute to investigate the matter, consult with the community, and produce recommendations and a summary of the submissions it receives.

Australians don’t enjoy very strong human rights protection, and what little there is has been rolled back under John Howard’s war of terror. Refugees are locked up on remote islands without recourse to proper legal protections. The anti-terror legislation criminalises free speech, allows suspects to be “disappeared”, interferes with accused’s legal protections, and institutes a regime of punishment without trial. Although Australia is a signatory to the UN conventions on human rights, Amnesty reports that gaps in the domestic legislation make the agreements virtually worthless.

Much of law which affects the human rights of Australians is in fact the responsibility of the states rather than the Commonwealth. This includes health, transport, education, police and so on. In fact when the draconian Anti-Terror Act was passed in 2005, it was possible only because the states each passed “enabling” legislation. In spite of giving this support at the time, the Labor State Premiers are now beginning to see human rights legislation as a way of underlining the differences between their party’s policies and those of the Liberals (conservatives) under John Howard at the federal level.

So the question is, should Tasmania have legal human rights protection, and if so what form should it take?

• Should it be an act of parliament or a constitutional instrument such as a bill of rights?
• What rights should it protect?
  1. Civil?
  2. Political?
  3. Cultural?
  4. Minority and disadvantaged?
  5. Economic?
  6. Social?
  7. Environmental?
• How should conflicts with current and future legislation be resolved?
• Should the police, courts, commissioners, or tribunals investigate infringements of these rights, and what remedies should be available?
• What mechanisms should be available to modify or extend these rights in the future?

It’s a big topic. I’ve included as appendices below a summary of current law protecting human rights in Tasmania, and a survey of human rights mechanisms in some western democracies. Feedback would be appreciated as I’m trying to frame a submission to the Law Reform Institute’s investigation. They’ve been kind enough to extend their deadline by a couple of weeks but there isn’t long to think about it, either.

Appendix: Relevant current law

Federal

1. The federal constitution provides a right to vote, a right to the acquisition of property on just terms, the right to a trial by jury, freedom of religion, and freedom of movement. The courts have interpreted even these rights narrowly rather than broadly, and allowed legislation to stand which infringes or limits these rights.
2. The Commonwealth has passed a Human rights and equal opportunities act 1986. This gives a commission set up for this purpose the right to scrutinise Commonwealth legislation to determine if it is consistent with Australia’s obligations under the International Covenant on Civil and Political Rights. While it reports its findings to the Attorney General, this does not oblige the Government to change legislation, and it has been reluctant to do so.
3. More effective have been the Racial Discrimination Act 1975, the Sex Discrimination Act 1984 and the Age Discrimination Act 2004. These provide a system of inquiry and conciliation of complaints under these Acts, and it’s possible for such complaints to be taken as far as the federal courts where penalties may be imposed. It’s a system which works in a limited and difficult way, and with many exemptions (government and local authorities, churches, charity bodies, for example).
4. Other relevant Commonwealth legislation includes the Privacy Act 1988, the Freedom of Information Act 1982 (recently neutered to some extent by regulations imposing significant costs in obtaining the information, as well as extensive use by governments of commercial in confidence objections), and the Criminal Code Act 1995, outlawing slavery, torture, genocide and other crimes against humanity.

State

There is a raft of Tasmanian legislation dealing with aspects of human rights, primarily the Anti-Discrimination Act 1988. This outlaws most sorts of discrimination, from race, age, sexuality, and gender, to pregnancy, breastfeeding, political beliefs, and even irrelevant medical or criminal record. It also makes sexual harrassment and incitement of racial hatred illegal. Complaints are dealt with through an Anti-Discrimination Commissioner who investigates and may conciliate. If this is not successful the complaint is referred to a tribunal which has the power to make binding orders. The Anti Discrimination Commissioner also has the job of reviewing Tasmanian legislation to determine whether it is discriminatory, and conducting research and education programmes.

Common Law

Common Law provides some protections, especially in the area of criminal justice such as the right to silence, the requirement that confessions obtained by force be excluded from trials, and limits on police powers of detention, interrogation, and search. Common law also provides principles of procedural fairness, and it was the basis of recognition by the high court of native title in the landmark Mabo case.

It has serious limitations as a basis for human rights protection, however. It does not recognise a right to privacy, religious freedom, or women’s rights, and it can be overridden by Parliament at any time, as in the case of the recent anti-terror enabling legislation.

Appendix: Human rights protection elsewhere

• The United States: The Bill of Rights was made part of the US constitution in 1791. It contains a series of amendments to the constitution which express absolute rights which individuals can enforce through the courts, and laws which are inconsistent with these rights may be ruled invalid by the Supreme Court. These rights are primarily civil and political rights. The mechanism has some advantages in that the legislature cannot pass laws which abrogate them, but there are two sides to this coin:
  1. Flexibility: It’s very hard to repeal rights or add new ones. The Congress is restricted in its ability to make certain legislation.
  2. Accountability: These rights are interpreted and enforced by an unelected and unaccountable judiciary who can seem to be out of touch with the will of the people. The Bill of Rights has been interpreted broadly by the Supreme Court, and giving this power to the courts can be a stabilising influence or an impediment to progress, depending on your point of view.
• Canada: The Charter of Rights and Freedoms is entrenched in the Canadian Constitution. It is enforceable by the courts, and it overrides inconsistent legislation. However if this happens Parliament may pass an override clause to give effect to the legislation notwithstanding the Charter. Unlike the US, rights are limited by law which can be demonstrably justified in a free and democratic society. Also Parliament can pass laws which explicitly override charter rights, but only for 5 years after which it must be reviewed. The Charter covers civil, political, and language rights, and has become an important part of Canadian society.
• The United Kingdom: The Human Rights Act 1998 is an ordinary act of Parliament like any other law, and enforced through the courts. The UK courts are required to interpret this act so as to be compliant, as far as possible, with the European Convention on Human Rights. All new legislation in the UK is scrutinised for compatibility with the Human Rights Act, and a statement is released along with the legislation which details the government’s opinion on the human rights implications of new legislation. Where the legislation is incompatible, this encourages the government to provide a thoughtful justification for the new law’s effect on human rights and allows that effect to become part of the debate on the new law.
• New Zealand: The Bill of Rights Act 1990 is an ordinary law, and applies to the government, courts, people performing public functions. The courts do not have the power to override legislation inconsistent with the act although the Attorney General must inform Parliament if he believes legislation would conflict. Government procedures now require that all draft legislation comply with the Act. The Human Rights Commission inquires into breaches of the act and advises, educates, and initiates programmes fostering an understanding of human rights.