Resurrecting the fight for a Charter of Rights
As Australians, we can breathe a sigh of relief, link arms and celebrate the “implied right to political communication”.
This is our version of free speech, a fundamental value of democracy. So what if it’s a little foggy, subject to wide interpretation, and not officially safeguarded in the Constitution. I’ll have you know the word “implied” is as good as gold – take it from me.
According to the Oxford English Dictionary its core verb “imply” means to “comprise as a necessary logical consequence …To express indirectly; to insinuate, hint at.”
Just knowing that such an important, yet unstated principle exists in at least some ideological form, makes me feel all warm and fuzzy inside.
So yes, being an Australian entitles you to the freedom of political debate, something that was decided at the High Court in 1992 with its Australian Capital Television Pty Ltd and New South Wales v Commonwealth ruling.
The judges concluded that free political communication was required for the proper operation of a democracy. Let the mud-slinging continue! But how about artistic and academic expression, assembly and demonstration? No sorry, these didn’t make the cut.
In fact, none of the cherished and fundamental human rights that we often assume have been safeguarded behind plate glass, have any Constitutional weight, save a few.
The treasured provisions that do exist within the Australian Constitution are S.80, which guarantees a trial by jury, S.116, which recognises the freedom of religion and S.117, which ensures the equal treatment of Australians regardless of state.
The rest are subject to an evolving judicial legacy of Common Law, which is bolstered by a few statutes. But hang on. What about that international agreement we signed? Yes, in 1980, we ratified the International Covenant on Civil and Political Rights. This means we join our international counterparts in theory and spirit, but it has no bearing on domestic practice. Remember how well our proposed asylum seeker solution chalked up?
For years, the movement for a Charter of Rights and Freedoms has lain dormant.
Introducing a national Charter into the Constitution would not be about entrenching lofty ideals that never touch the ground. Instead, it would protect us from discrimination and unreasonable persecution. The human rights struggle is not just about supporting those who do speak up, but about empowering those who can’t speak up.
It’s about striving for a more egalitarian society by recognising and condemning discrimination and unjust treatment collectively.
To clarify, having a Charter would not serve as a rule book for public interactions. We naturally moderate open debate as seen with the latest Alan Jones outcry, Destroy the Joint campaign, Kyle Sandilands and Andrew Bolt.
A Constitutionally entrenched document would prevent the government from pulling a fast one, by passing Counter-Terrorism or Sedition laws that go against fundamental freedoms like the right to a fair trial, the right to freedom from arbitrary detention and the right to not be tortured.
The ACT adopted something similar in 2004 called the Human Rights Act. And even our Attorney-General Nicola Roxon is on board promising greater efforts in this area.
At the NGO Forum for Human Rights on August 14, she began her speech by saying: “Australia has a solid human rights record … I think it’s fair to say that this leads to many Australians questioning whether we need a human rights debate at all in this country.”
Then she proceeded to list five areas that needed attention, funding and execution including the National Disability Insurance Scheme (NDIS), legal aid and the NBN. She also cited a commitment to enhance pay equity for 150,000 of Australia’s lowest paid workers by enabling pay rises of above 20 per cent.
Ms Roxon assured her audience of rights advocates that all new legislation must first pass a gruelling Statement of Compatibility. Hmm, the bill was drafted in January but takes effect in September. How do Aquarius and Virgo match up?
She explained: “Statement of Compatibility are more than a piece of paper - they ensure that the Government of the day and each Minister is focussed is on ensuring that key principles of freedom, respect, equality, dignity and a fair go for all Australians are considered in everything the Commonwealth Parliament does.”
I’m sorry but I’m picturing a slip of paper with the heading “Key Australian Principles” and little boxes next to this list:
Freedom (all that mumbo jumbo about free speech, assembly, etc.)
Respect (you know, for the Aborigines, women, disabled, ethnics, elderly, etc.)
Equality (to keep the Feminists quiet)
Dignity (for the retirees and wheelchair-bound)
Fair Go (all that about living the “Australian dream”)
Having such a Charter would do exactly as Ms Roxon proposes, it would guarantee that no individual minister or government of the day could pass a law that would fundamentally contradict Australian values.
As the system stands, society’s marginalised and vulnerable must wait for incremental judgments on cases that really kick up a stink, instead of automatically being entitled to certain rights and freedoms. This means we are constantly on the back foot, defending our claims to implied protections instead of blowing the whistle on governments that overstep their bounds.
It’s time to lock this down. It’s time to put some legal muscle behind what it means to be Australian and design our own supreme contract for human rights.
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