Former head of the Australian Human Rights Commission Gillian Triggs said it was “astonishing” Australia has no bill of rights, something set in law by democratic countries all over the world.
“… [I]n my time as president of the human rights commission I observed many, many, many cases of clear breaches of human rights that were not capable of being addressed by the courts because we are the only country in the democratic world and the only Commonwealth country that does not have a charter legislated or constitutionally entrenched charter of rights that would provide a benchmark,” she said.
Breaches included the indefinite detention without charge or trial of asylum seekers, as well as disproportionate laws on bikies, intelligence services and access to data.
While some may think a charter of rights would not benefit them, Professor Triggs said such charters informed and moderated administrators through the system.
Most people will never go through litigation or the courts, but they will deal with local councils, state governments or regulatory bodies and in those dealings officials would be aware of the legislated principals of a charter and it would regulate their behaviour.
“The other point is when you have a charter of rights, people are better informed about their rights,” Professor Triggs said.
It would provide people in society, particularly youths, with a better sense of the normative role of rights such as freedom of speech, freedom of assembly, protection of privacy and freedom without trial.
When people were more aware of their rights they were also much more inclined to stand up for them too, the professor said.
“If intelligence services, for example, have sought access to your metadata without a warrant, you might be much more inclined to protest about that and say on what basis, on what factual evidence are you mining my private material?” Professor Triggs said.
“I think the fact that we are the only democracy without a charter has meant that we’re actually regressing and drifting away from… all of the jurisprudence and standards that those charters provide within the community.”
She said when some people from other nations came to Australia they were “absolutely flabbergasted” the country did not have the basic provisions such a charter would provide in its law.
“We’re so isolated and so far away from the standards of comparable legal systems in relation to human rights standards we really have no comprehension of it,” she said.
“I think that explains why governments have been able to get away with growing executive powers, ministerial discretions that are not subject to judicial review, attacks on our courts and democratic institutions, and of course the very obvious issues like the detention of children and families in offshore processing.”
She said mandatory detention without trial for any offence and to be held for years without access to the courts on these questions was a “gross breach” of fundamental principals of human rights going back as far as the Magna Carta.
“We have not met our international obligations and we continue to fail to do so,” she said of Australia’s responsibilities to refugees and asylum seekers.
“I think Australians have perhaps been in a way confused by the slogans of particularly the Abbott and Turnbull governments that you must hold people indefinitely and without trial or charge in order to stop the boats.
“I think the tide has turned in Australia and the Australian people are starting to understand the argument that we can protect our borders without maintaining this extremely cruel policy.”
A bill of rights would also provide an opportunity to recognise the place and cultural position of traditional owners in Australia.
“I think the charter would be an opportunity to get something at a legislative level that would increase levels of trust without going so far as to promote a constitutional change,” she said.
“Obviously I would like to see constitutional recognition of Indigenous Australians, but the current political environment is one where as you know the Uluru Statement From The Heart was rejected really out of hand by the [Turnbull] government.
“I think some form of legislative charter would give us a basis to get a discussion and recognition of these rights going.”
Professor Triggs is often asked what such a charter would look like, saying it would initially be a “very very simple, one page document” that “people could understand” initially, before eventually being drafted into something more sophisticated.
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The Social Justice Advocates of the Sapphire Coast will present a forum where Professor Triggs will appear to discuss what a bill of rights would mean for Australia.
Other speakers will include Multicultural Services South East NSW director John Gunn and Indigenous Australian elder Pastor Ossie Cruse.
It will be held on Friday, November 2 from 7pm at the Bega High School auditorium, Bega. Entry is free and a light supper will be provided.