Dale Mills
Australia is the only industrialised country without a human rights act or its equivalent. Despite being a founding member of the United Nations and a signatory to the Universal Declaration of Human Rights, successive Australian governments have failed to legislate for human rights here.
International human rights law does not translate automatically into Australian law. For example, when the UN Human Rights Committee held that the laws in Tasmania that prohibited gay sex were in breach of the right to privacy, the federal government had to pass the Human Rights (Sexual Conduct) Act 1994 to give that human right legal force in Tasmania.
After signing on to the Universal Declaration of Human Rights, Australia also joined 150 other countries supporting additional human rights protection, such as the International Covenant on Civil and Political Rights. Yet successive Labor and Coalition governments have failed to ensure that the same rights can be effectively safeguarded within Australia. It's ironic that PM John Howard supports legal human rights guarantees in Iraq, but not in Australia.
The Australian Capital Territory has enacted its own Human Rights Act, the provisions of which include: protection from torture and cruel, inhuman or degrading treatment; freedom of thought, conscience, religion and belief; the right to protest; the right to freedom of association and expression; and the right to a fair trial.
The "right" to demonstrate is written explicitly into the ACT law. The experience in Queensland under the Joh Bjelke-Petersen National Party government, where protests were outlawed, led to the Peaceful Assemblies Act in 1992. Short of those two examples, no other state or territory has an explicit right to protest.
NewMatilda.com has launched a campaign to promote a draft human rights act, and its opening meeting at Sydney Town Hall attracted around 1000 people. (See <http://www.greenleft.org.au/back/2005/645/645p5b.htm>).
Arguments against a campaign for such legislative protection come from across the political spectrum. Howard says that Australians don't need their rights protected because they are protected enough already. Victims of ASIO raids, protesters assaulted by the police and trade unionists targeted for their activities might disagree.
Some on the left argue that a human rights act creates the false notion that human rights are best protected by judges who, despite some favourable decisions, will always rule in the interests of the ruling class. This is a powerful argument, but one that is mistaken as it interprets the campaign to adopt a human rights act in legalistic and not political terms.
For example, Section 29 of the human rights act launched by NewMatilda.com guarantees the right to form trade unions and the right to protest. That, in itself, is not a guarantee. However, if the government tried, for example, to deregister a progressive trade union like the Construction, Forestry, Mining and Energy Union, any judge would have to take into account the mass protests of tens of thousands of workers when making a decision as to the legality or otherwise of such an act. Legal rulings are not made in a political vacuum.
To say that the judiciary never responds to political movements is wrong. The range of mass protests against the Bjelke-Petersen government in the 1970s and 1980s eventually led to the Nationals' demise in 1987, and the 1992 law. It was not an accident that the desegregation of schools in the United States happened in the 1950s — during the massive civil rights and anti-racist movement of the time. Mass action by ordinary folk also created the conditions for the High Court to decide in 1951 against the constitutionality of the Menzies government's plan to outlaw the Communist Party of Australia.
Of course, human rights cannot and should not be left to judges. A human rights act of any kind cannot protect our rights unless we are also vigilant. But the very process of constructing such an act and enshrining human rights in law will make it just a little more difficult for those who already have too much power to take away more of our democratic human rights.
From Green Left Weekly, November 2, 2005.
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