DOES AUSTRALIA need a bill of rights? At a first glance, the answer to that question seems obvious. There’s ample evidence to suggest that the Human Rights and Equal Opportunity Commission and the High Court are not in a position to protect human rights. The former can only make recommendations; the latter is reluctant to overturn legislation unless it violates the Constitution. In 2004, in the Behrooz case, the High Court ruled that harsh and inhumane detention was not unlawful and did not contravene the Constitution. That same year, the court found in two separate judgments that the detention of children was lawful, and that immigration detention could be indefinite. If there had been a bill of rights, or if Australia had made the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights part of its domestic law, then the High Court would presumably have been able to rule that amendments to the Migration Act introduced by the Keating and Howard governments needed to be thrown out.
According to such an argument, we need a bill of rights because our judges have been unable or unwilling to develop the common law to comprehensively protect human rights. In other words, the courts need to be equipped with the means to ensure this protection without any recourse to the development of the common law. The courts can be trusted, but they are weak. They need to be given tools to strengthen their hands.
In this scenario, the government and parliament cannot be trusted while they are operating in an environment in which human rights are not comprehensively protected. Every now and then the government will introduce laws that allow the executive to infringe the rights of individuals, and parliament will pass those laws. In Australia, various amendments to the Migration Act are a case in point, as is the anti-terrorism legislation passed in late 2006.
Could a bill of rights function as an effective “form of insurance”? I was born and grew up in the Federal Republic of Germany, a country with a constitutional bill of rights. I recall two instances in which that bill of rights did not amount to much. In the second half of the 1970s, at the height of the Baader-Meinhof scare (which is the basis of Uli Edel’s film The Baader-Meinhof Complex, currently screening in Australia), parliament passed anti-terrorism laws and made executive decisions that deprived those suspected of being terrorists, or of supporting terrorists, of essential rights. In hindsight, it’s clear that those measures and legislative changes brought Germany to the brink of becoming a police state. At the time, it was argued that people who are fierce opponents of a political system whose integrity is epitomised by a bill of rights forfeit their right to be protected by those very same rights.
In 1992, in the context of widespread and often hysterical concerns about the number of asylum seekers entering Germany, parliament qualified a provision in Article 16 of the German Constitution, “Persons persecuted on political grounds shall have the right of asylum.” Since then, and largely as a result of those constitutional amendments (which made possible certain legislative changes), the number of asylum seekers dropped from about 300,000 per year in the early 1990s to about 20,000 last year, with the rate of successful applications falling from just over 4 per cent to less than 1 per cent.
The right of asylum (or, as per Article 14 of the Universal Declaration of Human Rights, the “right to seek and enjoy in other countries asylum from persecution”) is an interesting case. Governments have treated some human rights enshrined in the Universal Declaration much like prime minister John Howard treated election promises: only “core” rights must not be infringed. Whether or not a right is a core right has to do with potential clashes with other rights and interests, rather than with its substance. Conflicting as it does with nation-states’ sovereign right to control access to their territory, the right of asylum has not been regarded a core right.
It’s also possible to argue that a charter of human rights or bill of rights is necessary not so much because of government’s habitual bad faith but because of the reasons it advances for its purported goodness. In the past ten or so years, Western governments have increasingly justified acts of benevolence by referring to the need for compassion. George W. Bush popularised the term “compassionate conservatism” during his first term in office. “America, at its best, is compassionate,” he said in his 2001 inaugural address. He suggested that his government would tackle poverty out of a sense of compassion, and that in doing so it would enlist the compassion of individual Americans. John Howard employed “compassion” in a similar manner. Perhaps surprisingly, the current Australian prime minister has been at least as fond of the term as was his predecessor.
In Australia, politicians’ use of the term compassion has increased over the past ten years. In 1998, members of parliament said “rights” seventeen times for every time they said compassion. Last year, the ratio was seven to one. Politicians’ fondness for the term is partly to do with its elasticity. In the words of George Orwell, “political language… is designed to give an appearance of solidity to pure wind.” Not only could compassion be a useful weasel word; its positive connotations can distract from or neutralise the negative connotations of something else. More importantly still, as a motivating factor, compassion extended towards a person is very different from an obligation resulting from his or her rights.
Historically, charters of rights often distinguished – explicitly or implicitly – between citizens and non-citizens, between men and women, or between slaves and slave-owners. But regardless of its partiality in terms of gender or race or legal status, a charter of rights does not distinguish between people who are deserving and those who are undeserving. More often than not, those guided by their compassion make that distinction. “And I can pledge our nation to a goal: When we see that wounded traveller on the road to Jericho, we will not pass to the other side,” George W. Bush pledged in his 2001 inaugural address. Provided, of course, that the wounded traveller does not appear to be a serial recipient of our assistance, is likely to be grateful, and does not hold the passer-by responsible for his misfortune.
Ideally, a human rights charter or bill of rights would compel the government to foreground a rights-based argument when making the case for a piece of legislation or for new policies, rather than draw on a terminology more appropriately employed by charities. But is it only the government that cannot be trusted?
In Australia in recent years, civil society, too, has proven untrustworthy. It has been notoriously fickle, fearful or paralysed by inertia. The Keating and Howard governments were able to introduce draconian asylum seeker laws because they, and the human rights violations that resulted from them, were popular. The anti-terrorism legislation in 2006 was possible because a majority of Australians believed that its measures were necessary to protect Australia. The same goes for the anti-terrorism laws introduced in Germany in the 1970s. In 1992, some 75 per cent of Germans were in favour of a change to the constitution to neutralise the clause that guaranteed the right of asylum – in favour because they thought that their own anxieties mattered more than the fears of refugees.
In many instances in which people in democratic societies were gripped by a collective anxiety, governments have actually played a moderating role. That is possibly even true for West Germany in the second half of the 1970s. In Australia it is true for the internment of enemy aliens during the second world war; if popular sentiment had determined policy, the government would have interned not just a substantial number of enemy aliens of German and Italian nationality, but every single Australian of German or Italian descent.
Kevin Rudd’s fondness for the term compassion, and for packaging policies in terms of privileges granted rather than rights afforded, also reflects the weakness of rights-based discourses in Australian public debate. During the debate about the detention of asylum seekers, particularly between 2001 and 2005, refugee advocates did not run with arguments that featured Article 14 of the Universal Declaration of Human Rights or the fact that Australia voted for the UN Declaration on Territorial Asylum. Instead, they focused on images of children in detention. The public debate about asylum seeker policy was won and lost and eventually won again on account of footage shot by Amer Sultan in the Villawood detention centre, which showed a listless Iranian boy, Shayan Badraie, who was suffering as a direct consequence of government policy.
I am convinced of the merits of a rights-based discourse. Such a discourse is often sadly lacking in Australia. A vigorous public debate about a human rights charter goes some way towards changing that. The charter itself may not. •