Australia: Protect our eroding rights: An interview with Human Rights Law Centres campaign director Tom Clarke

Last Updated: 29 August 2019
Article by Paul Gregoire

Most Read Contributor in Australia, November 2019

The understanding that human rights aren't protected under this nation's federal law is no longer just the domain of lawyers and politicians. There's now a growing awareness within the general population that something's amiss when it comes to basic freedoms in this country.

The recent AFP press raids and the public persecution of whistleblowers have brought the issue of rights protections to the fore in the national debate in Australia, which stands as the only western democracy without a federal bill of rights.

The prime example of what unprotected rights result in are the 77 national security-counterterrorism bills that have been enacted at the federal level since 9/11. These pieces of legislation have incrementally eroded citizens' rights to the bipartisan glee of Canberra politicians.

A recent instance of terrorism laws being turned on civilians is the warrant served during the ABC raid. It allowed AFP agents to "add, copy, delete or alter" information on the journalists' computers: a measure created by 2018's Assistance and Access Bill, ostensibly to deal with the terrorist threat.

One freedom over all others

This week Prime Minister Scott Morrison and the cabinet were debating the provisions of the Religious Discrimination Act, prior to the release of its exposure draft. Prompted by the passing of same-sex marriage laws, this bill's chief aim is to protect freedom of religion.

Indeed, what this means is the Liberal Nationals government – which has quietly been whittling away at rights, such as privacy, expression and assembly – has decided to single out one right over all others and enshrine protection for it in federal law.

However, there's no evidence that people of faith are being discriminated against in this country. And this is rather a concerted effort by the religious right to strengthen the ability of religious institutions to lawfully discriminate against people based on their sexuality.

And it further reveals that conservative forces within government are not interested in protecting the basic rights of everyday Australians, as their real focus is on broadening the privileges this nation's political structures already afford them.

Starting that conversation

The Human Rights Law Centre (HLRC) launched the Australian Charter of Human Rights campaign in September last year, with the aim of raising awareness in the wider community of the need for legislation that protects a broad range of rights at the federal level.

Such a bill would not only provide Australians with a means to legally challenge the government or other entities when their rights have been violated, but it would also ensure that the laws being enacted by politicians are in line with basic human rights standards.

Sydney Criminal Lawyers spoke to HRLC campaign director Tom Clarke about why Australia remains a pariah when it comes to rights protection, the consequences that this lack of protection results in, and how the campaign seeks to effect change.

Firstly, the Human Rights Law Centre last September launched the campaign for an Australian Charter of Human Rights. However, a few months later, Prime Minister Scott Morrison announced his government would be enacting a Religious Discrimination Act.

What do you think of the Coalition prioritising religious freedom as the one right that it proposes to protect in law over all others?

The Morrison government's agenda for new religious discrimination laws seems to be a bit of a missed opportunity to have a wider-ranging discussion about how best to protect human rights and ways to strike a balance between competing rights and responsibilities.

Rather than providing religious people with a shield from discrimination, a number of people are very concerned the laws the Morrison government is developing will actually give religious organisations a license to discriminate. Religious schools being able to expel gay students is one example that keeps coming up.

Instead of just leaving it to governments of the day to pick and choose whose rights they want to respect, creating an Australian Charter of Human Rights would help us ensure that everyone's rights are properly protected in our laws. That's the conversation we want to kick start.

A great thing about human rights laws is that they're not only about protecting the rights of particular communities, but they also provide us with a solid framework to help us respectfully navigate our differences.

So, these sorts of debates – like the one about free speech versus hate speech – are actually best had in a holistic way: that's one of the reasons why we're so keen to put a charter of rights on the political agenda.

Australia has come this far without a bill of rights, so why would you say it's needed? And what sort of impact would it have?

For most people, most of the time, things are pretty good in Australia and that's great. But, it doesn't mean we don't have significant human rights violations taking place or that we couldn't do things better.

Just ask some of the refugee men that our government has held on Manus Island for six years now or the Aboriginal kids who have been stripped, teargassed and hooded in the NT's youth prisons.

Creating an Australian Charter of Human Rights is an opportunity to ensure the values we all hold dear – like fairness, equality and compassion – are properly reflected in our laws and policies.

Currently, we have various bits and pieces of human rights protections here and there. And there are lots of gaps. So, wouldn't it be great to have all of our rights clearly listed in one law?

It would mean that everyone from school kids to new Australians could easily learn what their rights are and know that they can take action if those rights aren't respected.

A Charter of Human Rights will provide rights protection and ensure that Australian laws meet human rights standards. In a practical sense, how would such a bill guarantee these outcomes?

A Charter of Rights compels governments to take into account our human rights when creating new laws and policies and delivering services – like aged care, Medicare, Centrelink, disability services, and education funding.

These types of behind the scenes benefits of a charter can go a long way in preventing human rights violations from occurring in the first place. But, of course, you also want a mechanism to deal with violations if they do occur.

A strong Charter of Human Rights will give people and communities the power to take legal action when a government does cross a line and violates human rights.

Queensland passed its Human Rights Act early this year. It's set to come into play from the first day of next year. This follows on the ACT passing its Human Rights Act in 2004, and Victoria passing its Charter of Human Rights and Responsibilities in 2006.

What sort of impact would you say rights protections have had in Victoria and the ACT?

Victoria's charter takes a fairly gentle approach of setting standards, and not really giving people an easy way to enforce their rights. Yet despite these limitations, there's no doubt Victoria's charter has been a force for good.

For example, we've seen its influence in policy development, it's helped community advocacy, and it's played a role in legal cases – such as when the Human Rights Law Centre took the state government to court to have children transferred from a notorious maximum-security adult prison to an age-appropriate facility.

The Human Rights Act in Queensland comes into effect next year and it goes a few steps further than the charters in Victoria and the ACT, in that it protects more rights, such as education, and has a slightly better complaints procedure.

So, it's been a very promising development and hopefully other states, like NSW and Tasmania, will follow suit in coming years.

This isn't the first time there's been a campaign for an Australian bill of rights. Indeed, it's come up periodically since the time of the drafting of the Australian Constitution.

As mentioned, Australia is the only western democracy without such a bill. In your opinion, why is there such a reluctance from government to enact one?

Most politicians have a reluctance to place what they perceive as restrictions on themselves. They see it as a potential hindrance rather than seeing a charter of rights as a set of guiding principles and standards that would help them to ensure fairness, respect, equality and dignity are the values that inform their decision-making.

Another factor is that things are pretty good here for most people, so our "she'll be right" attitude has meant we've been a bit too complacent.

We haven't got around to doing the various things we could do to improve our democracy and to also protect some of the rights and conditions we've come to take for granted.

So, the Human Rights Law Centre has launched this campaign, which has the support of a wide range of civil society organisations. How is the campaign working to bring about its desired outcome?

At this point, we're really just wanting to start the public conversation. So, we've assembled a network of community groups that have an interest in protecting human rights – particularly those who work with people experiencing disadvantage.

And we've been holding community forums, asking the community for ideas, getting people to sign our petition and so forth.

As we build momentum, the next step will be to reach out for more support within the political parties and within parliament and see what we can get on the agenda.

We need people to step up and be heard on this issue, because our politicians need to know that there's a growing desire to ensure that, as a nation, we actually walk the walk when it comes to human rights.

And lastly, if Australians don't step up and support a campaign to have a charter of rights enacted at the federal level, what sort of things are we seeing now in the public arena that we're likely to see more of if the rights of regular citizens aren't given protection?

Unfortunately, the very concept of human rights – that we should all treat each other with decency and respect – can no longer be taken for granted.

It feels like more and more politicians are willing to dabble with hate and fear for political advantage and introduce over the top laws that are eating away at so many of our rights and freedoms.

It would be nice to think that this trend might change, but I'm not comfortable with just relying on politicians to do the right thing.

I'd prefer to see actual mechanisms, like a charter of rights, in place that give people and communities the power to hold our governments to account. It's important that when people's rights are violated, they have the ability to take action.

At the heart of human rights is an understanding that we're all in it together. When we let someone's rights be violated, it diminishes all of us.

So, when you look at the horrible way our politicians have treated people seeking asylum, how they continue to shun the requests from Aboriginal and Torres Strait Islander peoples for a voice to parliament, and their alarming new security laws that are stifling legitimate public debate, it should be cause for concern.

We need to create an Australian Charter of Human Rights, not just to stop this kind of regression, but to make the most of what human rights deliver.

Respecting human rights is about ensuring that when we get sick, we can visit a doctor regardless of our bank balance. It's about ensuring every kid – whatever their postcode – can get a quality education.

It's time we got around to actually making sure our human rights are properly protected in our laws.

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