By Jennifer Nash
Australia now is the only major English speaking country in the world which has not adopted a bill of rights. Since 1982 New Zealand, Canada, and the UK have all adopted bills of rights as Tom Campbell highlights in his book “Protecting Rights Without a Bill of Rights: Institutional Performance and Reform in Australia”.
Amnesty International Australia in a 2006 media release lamented: “Australia, once a leader on the world stage of human rights, is failing to demonstrate true leadership. Amnesty International Australia commends the many thousands of Australians who reject the Australian Government's erosion of fundamental human rights ... On Human Rights Day this year, Amnesty calls on Prime Minister John Howard to show leadership by protecting rather than flouting human rights. ... The leaders of today are proving to be poor successors to those who forged the Universal Declaration on Human Rights in 1948... “
The Australian Government continues to trivialise and simply ignore the lack of democracy in Australia, the urgent need for reform and a long overdue bill of rights. Nationwide propaganda again encourages Australians to celebrate Australia Day on 26 January by exercising the ‘democratic right’ to give mates a friendly slap on the back and enjoy a celebratory BBQ.
Sadly, many Australian families won’t be able to enjoy Australia Day by having a BBQ due to Australia’s growing housing shortages and homeless problems. With a global economic recession, rising unemployment, low education and health standards and no bill of rights, things are bound to get even worse for many families.
In 1976 Australia signed the legally binding International Covenant on Civil and Political Rights (ICCPR) yet Australia does not recognise the rights of its citizens under the ICCPR and the right to political self determination is non-existent.Australia’s governments are acting increasingly in an anti-civic manner towards citizens and much Federal and State legislation conflicts, which undermines citizens’ rights under the ICCPR and the Australian Constitution. New and very harsh legislation in the form of statute law passed by parliaments is being created at an alarming rate without genuine community consultation or any right to veto. Australia’s government has gone from passing a few hundred pages of legislation in 1901 to thousands of pages of legislation annually today as Dr Alex Robson from the Australian National University explains.
Australians’ constitutional right to vote is but one example where unreasonable and tyrannical statute law has simply overturned and ignored our constitutional rights in relation to voting. Canberra has changed what is a constitutional civil right by law into a compulsory obligation under new Federal law without bothering to hold a referendum to alter the constitution and allow this. Some years ago an Australian Capital Territory diplomat was actually jailed when he decided to exercise his civil right under the constitution not to vote. In Australia, you vote or you risk going to jail.Further questionable and never ending State, Federal and Local government legislation has seriously eroded fundamental human rights of everyday Australians. Repeated calls by international civil rights for an Australian bill of rights have been dogmatically ignored by Canberra. When questioned on the absence of a human rights bill Canberra always answers that a human rights bill would not protect Australians.
Australians also are being denied an effective, impartial and independent human rights complaint mechanism. Australia does in fact have a Federal Human Rights and Equal Opportunity Commission (HREOC), but legislation incredibly prevents people from lodging formal complaints with the HREOC.
What good is a human rights commission if federal legislation actively prevents people from accessing the very remedy they urgently require? Does that not make HREOC a sham and an alibi for a commission?
Unlike Canada, the USA and Europe, Australia will not tolerate a Human Rights Watch office in the country and such Non Government Agencies (NGO) where they exist are strongly politicised and unable to effectively carry out their duties and international functions. Examples are Amnesty International Australia, United Nations Australia, International Commission of Jurists Australia who are unable to intervene in domestic affairs or injustices, and Transparency International Australia which cannot investigate public sector corruption.
Unable to access an effective NGO or human rights commission, human rights complainants are not infrequently forced to resort to the courts and endure very lengthy, very expensive and harrowing Federal Court of Australia processes instead. Most people of course cannot afford this.
Evidence suggests complaints in the Federal Court and other human rights jurisdictions like Discrimination Tribunals to which litigants are often directed take many years to resolve matters and generally leave complainants disillusioned, exhausted and much out of pocket. Only criminal courts in Australia have trials by jury. In civil and human rights cases, people are judged by a politically appointed Judge and cannot ask for a jury to hear their case. Yet accused persons in a criminal trial can ask for a single Judge to hear their case instead of a jury as will occur in the Dr Jayant Patel Bundaberg Hospital deaths case where a single Supreme Court Judge will decide the matter. Thomas Jefferson said: I believe trial by jury is the only anchor yet imagined by man which can hold a government to the principles of its constitution".
Many human rights complainants report feelings of being victimised a second time by the overtly adversarial, biased and protracted court process, and even of being abused and intimidated. Courtroom transcripts reportedly have been severely edited in order to pervert the course of justice. Australia’s human rights mechanism, HREOC has become more a case of hreoNOT!
Australia is not a democracy but rather a juristocracy where the judiciary are politically appointed by the Attorney General of the day. A juristocracy, says Abdulhamit Bilici, Columnist for Today’s Zaman, is actually “a type of oligarchy in which an elite minority runs the country and is not accountable to people for anything and is also politically unaccountable”.
Dr. Hasan Kösebalaban lecturer at Michigan State University says “Jurists arrogate to themselves a monopoly on interpreting law and see themselves as the ultimate protectors of the regime against the democratic wishes of their people.”Ran Hirschl, Professor of Political Science and Law at the University of Toronto, and Canada Research Chair in Constitutionalism and Democracy, has written a book on juristocracy: Towards Juristocracy,The Origins and Consequences of the New Constitutionalism. He says: “Courts do little, if anything, for advancing progressive notions of social justice that are not achieved by democratic politics. Courts protect powerful economic and social interests by taking controversial issues out of politics and off the table, thus moving democracies toward unaccountable juristocracy”.
Geoff Davies QC, a former Queensland top judge has labelled Australia's system of appointing the judiciary “outdated and a recipe for political bias”, but his calls for change consistently have been ignored by government.
Sir Max Bingham, LLB (Hons), QC a former Tasmanian Attorney General, told The Weekend Australian newspaper that “deteriorating standards demanded action in all states, not just in his native Tasmania, where he said a succession of scandals had undermined public confidence in government. Given the general state of things across the country in this day and age, it seems to me that most states need some sort of independent whistleblower, particularly where governments have held office for more than a few years," Sir Max said.
And Professor Malpas, of the Australian Research Council, professorial fellow at the University of Tasmania and distinguished visiting professor at La Trobe University in Melbourne, said: "I would argue very strongly for the need for an ethics commission at the federal level. Australia has a very poor record of upholding ethical standards in public life - whether in government or in parliament more broadly. This is in marked contrast, for instance, to the British system in which ministers are much more likely to be called to account for impropriety and in which there is a much larger and encompassing structure of ethical oversight." In May 2008 Prime Minister Kevin Rudd said he was considering the need for judicial reform and an ethics commission following calls for more accountability in government.
Democracy, truly independent, impartial and democratically elected courts, ethics, and human rights are strongly intertwined issues which the Australian government appears to be very reluctant to address. So far none of the recommendations of leading ethicists and jurists have been adopted and there has been only posturing, empty rhetoric and very little to no public debate at all on fundamental human rights, the politicised public service and the politicised court system. (END)
-- Jennifer Nash is an Australian citizen and lives in Brisbane, Australia. She personally experienced Australia’s human rights legal system, when she was forced to legally represent her son in court in a complaint against the Queensland State government about severe school bullying. “Australian children in worst class of bullies“. The courts ignored her son’s civil right to an education and to provide an effective remedy, ignored the right to protection by the state and equality before the courts under both the International Covenant on Civil and Political Rights and The Rights of The Child.
The harrowing court process endured for a staggering 5 years and court tapes and transcripts from both the Queensland Anti Discrimination Tribunal and the Brisbane Supreme Court were repeatedly severely edited in order to deny evidence of judicial bias and intimidation. The Queensland Parliamentary Crime and Misconduct Commission and other Commonwealth bodies refused to investigate her documented and corroborated complaints of judicial corruption or offer a remedy. Prime Minister Kevin Rudd so far has refused to respond to her calls for an independent investigation. In the meantime a large and unlawful costs order against the bullied school boy, her son, has been passed and stands ready to be enforced by government at any time.