Does Australia need a bill of rights? Many Australians think so and the Rudd government has acted on one of its election promises by starting a nationwide debate and inviting members of the public to submit their views on whether the right to free speech and other human rights should be enshrined in law. The public has been asked to indicate by May 29 which human rights they feel should be protected, whether human rights are sufficiently protected at present, and what can be done to provide greater protection. Australian Attorney General Robert McClelland launched the consultation process on December 10 to coincide with the 60th Anniversary of the Universal Declaration of Human Rights. Father Frank Brennan, a Jesuit priest and law professor, was appointed to head a panel that includes former police commissioner Mick Palmer, journalist Mary Kostakidis and lawyer Tammy Williams. But the question Australians are now pondering is whether the legislation is necessary. One of the most prominent critics is former New South Wales Labor premier Bob Carr who says the exercise will fail and has advised Prime Minister Kevin Rudd to dump the idea, telling The Australian that he didn't think it would 'take off, politically'. 'No one can object to a process of consultation but Australia is one of the freest countries in the world and our freedom rests on the common-law tradition, freedom of speech and the healthy give and take of parliamentary democracy.' Mr Carr pointed out that the public had already said no to a bill of rights in a 1988 referendum. The opposition has also rejected the idea. Shadow attorney general George Brandis, speaking in August at the James Cook University law school in Townsville, challenged the government to show why Australia needed a bill of rights. 'Where the public culture is inhospitable to the rights of the individual, no amount of grandiose language will change it, and bills of rights become meaningless constitutional baubles - as the Nazi bill of rights [which guaranteed 'the dignified existence of all people'], the Soviet constitution, and the bill of rights of modern Zimbabwe, chillingly attest,' he said. 'Conversely, in a nation such as Australia, the very strength of our liberal democratic culture is the strongest reason why such an instrument is redundant.' And, like other critics, opposition leader Malcolm Turnbull said a bill of rights would transfer too much power from Parliament to unelected judges. 'The problem with generally worded guarantees of human rights in constitutional documents is that they give extraordinary legislative power to the courts. Judges are not elected. The good thing about politicians is that if you don't like what they are doing you can boot them out, and they are accountable,' he told Macquarie Radio. But that argument is undermined by the fact that the government has ruled out a US-style constitutional document that allows courts to declare laws invalid, preferring a statutory charter based on Britain's Human Rights Act. High-profile human rights lawyer Julian Burnside backs this weaker model, which simply requires Parliament to take protected rights into account when passing legislation. 'The rights protected by a modern bill of rights are, broadly speaking, the sort of rights addressed in the Universal Declaration of Human Rights which Australia adopted in December 1948,' he said. 'It would be difficult to find any serious disagreement about the nature of those rights: freedom from arbitrary detention; freedom from torture; freedom of thought and belief; equality before the law, etc. What is odd is that some people do not want to see those rights protected by law.' Even High Court judge, Mr Justice Michael Kirby, who admits to having been a sceptic in the past, would like Australia to adopt the British model. 'Yes, in my experience, we do need a bill of rights,' he said. 'In its busy activities, Parliament sometimes overlooks the rights of minorities, especially unpopular minorities. The law is not always just and it can be useful to the democratic process for the courts to draw attention to such inequalities so action can be taken by Parliament, or at least be considered.' In August, Mr Justice Kirby told bill opponents at a Law Institute of Victoria lunch that a statement of basic rights, constantly before citizens and Parliament, could encourage legislation that is respectful of the fundamental human dignity of all citizens. 'Would that be such a bad thing? A country, such as Australia, which has seen such serious injustices contrary to fundamental human rights - to women, to Aboriginals, to Asian people, to homosexuals, to religious minorities and others - can hardly say that there is no need for the democratic lawmakers to have an occasional stimulus based upon fundamental principles of equality and basic human rights,' he said. The swell of public opinion in favour of some form of bill has been growing. This year, 60 organisations joined to form the Australian Human Rights Group, headed by Susan Ryan, to campaign for protection of rights through a law that reflects community involvement and agreement. 'Australia has a huge gap in its national laws. We are the only democracy lacking a comprehensive charter or human rights act to protect basic rights such as freedom of speech, of movement, of religion, of association, the right to vote, to a fair trial, freedom from torture, and freedom from detention without trial,' Ms Ryan said. 'This gap came into sharp focus in 2005 when innocent children were detained behind barbed wire, asylum seekers were condemned to indefinite detention, a mentally ill Australian woman [Cornelia Rau] was jailed then held in immigration detention, another severely ill Australian citizen [Vivian Solon] was deported to the Philippines, and indigenous communities were left without basic services, to spiral into violence and despair.' Ms Ryan said a charter would create greater focus on human rights in Parliament and in the legislative process - before a bill becomes law. 'We want our act to become a change in culture rather than a change in our system of government, making ministers and members of Parliament aware of any law's impact on human rights. I think if that were to happen, we'd see fewer violations.' Advocacy group GetUp has also launched a vigorous national campaign. The online advocacy group, inspired by the US-based MoveOn.org, is warning that opponents are counting on lack of community interest to sink the idea. GetUp had considerable impact on the last Australian election and in the past three years has attracted more than 300,000 people to its human rights campaigns, like the one to free Guantanamo Bay detainee David Hicks. But GetUp argues that a modern democracy shouldn't have to rely on community outrage to ensure laws are fair, and points out that even freedom from torture is not guaranteed in Australia. 'We need to find a way to make sure that human rights are taken into account when decisions are made, so that nobody falls through the cracks,' director Simon Sheikh said. Amnesty International co-ordinator Sophie Peer has no doubt that Australia needs human rights legislation. 'We do not have overarching human rights protections giving us access to those 30 rights that are in the Universal Declaration of Human Rights. For example, Australians just assume we have the right to free speech but, apart from political speech, that is not protected in law anywhere,' she said. She cites the Northern Territory intervention in Aboriginal communities, Australia's policy on asylum seekers and parts of the anti-terrorism legislation enacted by the John Howard government as examples of instances where a charter would have provided greater protection. 'Parliament passed some of those laws overnight. What we didn't see was Parliament having to consider the human rights implications,' Ms Peer said. The suspension of the Racial Discrimination Act under the Northern Territory emergency intervention would definitely breach a charter of human rights, said Larissa Behrendt, a law professor at the University of Technology in Sydney. 'It does not give due process to Aboriginal people. There's no right of appeal,' she said. The intervention contains many breaches of Australia's international human rights obligations, including compulsory quarantining of income. Like other Aborigines in 'prescribed' parts of central Australia, Barbara Shaw from the Mt Nancy Town Camp in Alice Springs has had her income quarantined since the intervention. She will take her case to the United Nations Committee on the Elimination of Racial Discrimination in mid-January. 'Indigenous Australians subjected to racially discriminatory laws have no recourse to the courts in this country and are forced to complain to the UN,' said her lawyer, George Newhouse, who also represented Cornelia Rau and Vivian Solon. 'This Christmas, if Barbara, as an Aboriginal Australian, wants to use her Centrelink [social welfare] funds to buy presents for her children, she has to write to Centrelink and make a case. It's undignified and discriminatory. 'What we're seeing developing in central Australia is a form of apartheid. Indigenous Australians are forced to use special government store cards so there are queues in NT shopping centres that are for indigenous people only, so you have whites and blacks lining up in separate queues.'
