It's a good thing that Australia isn't burdened with human rights legislation
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Version 0 of 1. Human rights legislation is flourishing around the world, growing out of the fear of unrestrained state power. This expansion is usually celebrated - as it is today, on International Human Rights Day. Australia, being the only western democracy that lacks rigorous protections of individual liberty, provides a clear lesson to the rest of the world about the benefits and drawbacks of rights legislation. When the threat of communism loomed in the 1950s, the US saw the rise of McCarthyism. The state began a lengthy witch hunt into the bureaucracy, unions, and Hollywood. Despite the first amendment expressly protecting freedom of speech, the supreme court had already found that it didn’t apply to communists. It took the better part of a decade before the courts found anti-communist campaigns violated other rights, such as the right to silence. In Australia, the government enacted the Communist Party Dissolution Act, which sought to “provide for the dissolution of the Australian communist Party and of other communist organisations, [and] to disqualify communists from holding certain offices”. Although we lack an explicit freedom of expression in Australia, the act was challenged the day it received royal assent. Less than five months later, the high court ruled that the Commonwealth lacked the power to declare the guilt of the communist party, rendering the act invalid. Our lack of freedom of speech also means there is nothing preventing the government from enacting legislation like the Tobacco Plain Packaging Act 2011, which bans advertising and promotion on tobacco products. If the government of Canada pursued a similar policy, it would be blocked by the charter of rights and freedoms. In RJR-MacDonald Inc v Canada, the supreme court also found that the charter prevented the government mandating unattributed health warnings on tobacco packaging. Without that right existing in Australia, the tobacco industry’s case against the laws was doomed to failure. Our constitution also fails to defend religious freedom. In Snyder v Phelps, SCOTUS discovered this right protected the Westboro Baptist church's right to protests at military funerals. Our deficiency has meant Australian courts might consider other priorities, such as the welfare of children. In a 1978 case called The Marriage of Paisio, the family court found that “certain practices, albeit given a veneer of religious justification, are in fact so positively harmful to the welfare of the children that they must be removed from the influence of those who advocate such practices”. International Human Rights Day celebrates the adoption of the Universal Declaration of Human Rights by the UN in 1948 – it is a good opportunity to challenge the all too common assumption that Australia is in need of a bill or a charter of rights. The University of Wisconsin-Madison’s professor Howard Schweber has taken this view to the extreme, arguing that Australia’s lack of explicit rights guarantees means that Australia does not have a genuine constitution. Australians should not feel ashamed that we lack cumbersome rights protections. When our constitution was crafted, it was the envy of the world. In 1901, an international commentator said it was “more democratic than in the US, because there both the states and the union are fettered by many constitutional restrictions”. Today, unburdened by archaic, absolutist rights legislation, we can have genuine debates about rights, tweaking, updating, and refining them to achieve the sort of society that we want – not the sort of society that people who died in the 18th century wanted. This approach doesn’t always succeed and Australia has a history of failing to uphold the best political virtues. Last week, Australia’s attorney-general authorised a raid on the office of a lawyer who was representing a witness in the Timorese espionage case against Australia . There are ongoing debates about the Queensland government’s legislation which inhibits free association. And governments from both sides of politics have restricted asylum seekers’ access to lawyers. Critics assume that these situations are possible only because we lack a rigid human rights framework, but the longevity of McCarthyism calls that into question. When society lost interest in upholding the lofty rhetoric of rights, the First Amendment didn’t come to the aid of the heretics. A Bill of Rights has not stopped the US trying to find a new definition of pain and suffering in the belly of offshore detention centres. Conversely, when the Australian Government sought a referendum to acquire the power to pass anti-Communist legislation, Australians voted it down. The best rights protection will always be an engaged and critical electorate, not a parliament with rusted on training wheels. So let other countries puff their chests with empty slogans about rights. Let them use International Human Rights Day to reaffirm their ideological commitment to the inalienability and irrefutability of whichever rights happen to suit them most. Let their restrictions on legislative capability be a testament to their fear that parliament is forever tempted to commit atrocities. Instead of trying to emulate these mediocre, antiquated, constipated ways of other jurisdictions, Australians should take pride in our achievements, learn from our errors, and strive to show the rest of the world that bills and charters of rights are superfluous. Our editors' picks for the day's top news and commentary delivered to your inbox each morning. |