Helen Wilson (Australian judge)

Transcription

Australian Human Rights Commission: everyone, everywhere, everyday The Great Debate -- Does Australia need a charter of human rights? My role for today is to talk about what a Human Rights Act for Australia might look like and to address some of the arguments that have been made against an Act of this kind being adopted. But, I'd like to open with just a few general observations. The first is that there is no perfect model of human rights protection waiting to be discovered by this committee or anyone else. Thoughtful, informed well-meaning individuals who care about human rights can, and do, hold, sometimes passionately, very different views on the best way for Australia to protect human rights. While the views of all of these people are to be respected, ultimately the issue calls for a judgment to be made about what is the best that we can do at this time for this country. We on this side of the debate do not suggest that a Human Rights Act provides the perfect solution. But, we do believe that, despite its shortcomings, it is a necessary element of the best model of human rights protection that can be devised for Australia now. My second observation is that fear of change is natural but not necessarily logical. So, it is fortunate that we in Australia are not the first liberal democracy to have considered statutory protection of human rights. We can learn from the comparable experience of other jurisdictions with whom we have much in common, like the United Kingdom, like Canada, like New Zealand, and like Victoria and the ACT. They have gone down this path before. These jurisdictions, we can observe, have not experienced the terrible things that we are told to fear from a Human Rights Act. The sky has fallen in in none of those places. Indeed, responsible people, some of whom have been heard over these three days, who have worked closely with a statutory protection of human rights in those jurisdictions are very comfortable with the way those acts are working and the way they've impacted on the three branches of government in those jurisdictions. My third observation is one that Lisa also made, but let me make it again. While human rights are for everyone, some in Australia are much more likely than others to find that their human rights are not being respected. Lisa has told us of some of them in very moving terms. These people are not, as a general rule, found in academia or in judges’ chambers, they do not hold offices as Ministers of the Crown, or as Senators, or indeed as President of the Australian Human Rights Commission. I urge the consultation Committee, in informing its judgments as to whether human rights are adequately protected in Australia, and as to what rights particularly require greater protection in our country, to give primary weight to the voices that they have heard from the most vulnerable in our society to human rights abuses. My final general observation is that the Human Rights Act for which we on this side of the debate advocate is not a powerful instrument. Indeed, it is criticized by many for being too weak. The Act would be a modest addition to the existing checks and balances on the powers of the three branches of government that we have learned to value. But it would be an addition that would appropriately reflect the growing recognition in this country and elsewhere that respect for human rights is critical to a peaceful, to an inclusive and therefore to a safe society. Equally important, it seems to me, and act of this kind would provide a moral compass to guide public decision making in good times, and perhaps more importantly in bad times. So, what of the model? There are, of course, many possible models of a Human Rights Act. The model that we support would help develop a culture of respect for human rights in Australian government and more generally. It is such a culture, if I may answer something just said by Professor Craven, that might have saved Mr. Ward, it is that culture that might have made Parliament think about what it meant to imprison children behind barbed wire. It is a culture of that kind that might have spared Ms. Cornelia Rau and Dr. Haneef. The Act would do this by requiring each branch of government to integrated consideration of human rights into its work. In summary, the Act would require Parliament to scrutinize all proposed laws for compliance with human rights, require the executive to take human rights into account when developing policies and making decisions, and it would require the judiciary to interpret and imply all laws compatibly with human rights unless to do so would not be consistent with the puropose of the legislation. So, let me speak just a little more about how the Act would impact on the Parliament and the executive. The Act would not prohibit the passing of laws that infringe human rights. But, one of the big advantages of having a Human Rights Act is that it could require government to consider human rights from the earliest stages of policy-making and law formulation. It would promote a culture in which every exercise of power, that might affect our human rights and fundamental freedoms, is identified and justified. All new laws would be accompanied by a human rights impact statement. A Parliamentary committee would assess that statement and publish its own report. These measures would inform, and therefore improve, parliamentary debate. They would also encourage informed public debate about the human rights impacts of executive and parliamentary decisions, and may prevent human rights from incurring in the first place. Although we could have these things without having a Human Rights Act, the experience of other jurisdictions is that their impact is likely to be reinforced if there was a Human Rights Act in place. Turning to the judiciary a Human Rights Act should also provide guidance to the courts on how the legislature wishes its laws to be construed by indicating that all laws should be construed consistently with the rights protected by the Act unless to do so would be inconsistent with the purpose of the law in question. An interpretative provision of this kind would be but a modest expansion of the common law presumption that Parliament does not intend to infringe on common law rights and fundamental freedoms. It would be in this context that a court might find that it was unable to construe a law compatibly with a Human Rights Act. In such a case, a finding . . . In such a case . . . In the case of such a finding a Human Rights Act should, we believe, allow for the Attorney-General to be advised and require that office holder, when so advised, to report to the Parliament on the court's finding. The Act would not, as I have mentioned, give the courts the power to invalidate laws, and so it would do nothing to impair Parliamentary sovereignty. And, to answer something said by Mr. Carrow earlier, no one is proposing constitutional change. That is why there is no issue of anyone going to the court for a constitutional ruling. We also urge the enactment of a Human Rights Act which gives individuals the right to obtain redress when their human rights, as protected by the Act, are not respected. We are persuaded that a right for which there is no remedy is no right at all. But, redress, of course, would only be available when the act complained of was not an act required by the law. And, we do not step back from recommending that the redress extend to economic, social, and cultural rights. The adjudication of rights of this kind is happening all around the world, and indeed in this country. Under our Racial Discrimination Act complaints can be made concerning issues such as housing, the right to education and training, and the right to health care. My commission now entertains complaints of breaches of economic, social, and cultural rights. So, let me conclude by saying simply this, Australia is a great country to live in for most of us most of the time. However, review of our history, including our recent history, shows that we can do better, particularly better so far as the most vulnerable in our communities are concerned. The enactment of a Human Rights Act would show that we are seriously committed to doing just that.