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What price for a Bill of Rights?
Issue 97 - 26 Jan 2006
In December last year, the Victorian government released a report that recommended that the Victorian Parliament enact a Charter of Human Rights and Responsibilities.
As expected, the neo-conservatives have been beside themselves in seeking to denigrate and mock the idea.
As with many arguments of the right-wing, their criticisms are confused because they tend to overlook the fact that there are two different types of bills of rights that operate in two very different ways.
While some of these commentators have no legal experience, some do have legal qualifications which makes it even more astounding that they can make the sorts of mistakes that one would only expect from someone who knew nothing about the finer points of the law.
Put simply, there are two types of Bill of rights - a legislative model and a constitutional model.
A legislative model means that the bill of rights is a piece of legislation like any other piece of legislation (like in New Zealand and the United Kingdom) and a constitutional model is one where the bill of rights is entrenched in the constitution (like the United States).
Constitutional Bills of Rights are stagnant and interpreted by the judiciary who have the primary responsibility for balancing rights.
By contrast, a legislative Bill of Rights means that the debates about how to balance the rights protected against other priorities remains in the public domain.
It means that, when governments debate the balancing of rights or propose to over-ride aspects of a Bill of Rights, this is a discussion that takes place in the public realm and allows citizens to become actively involved in that public debate about the way in which we balance and protect rights.
The Victorian government is proposing (and the ACT has enacted) a legislative model. But, as I will elaborate, most of the arguments put up to discredit the idea are aimed at the United States-style model.
It is like criticising an apple by using arguments as to why an orange is not a good idea.
For instance, a favourite argument of the anti-rights brigade is that a Bill of Rights would be too inflexible and that rights that might be relevant now may not be so in the future.
The right to bear arms, entrenched into the US Constitution, is the example that is most often trotted out.
But this is an argument that is only relevant to the constitutional model, not the legislative-style model proposed by the Victorian government.
There is also the populist claim by the anti-rights advocates that a Bill of Rights should be rejected because it creates “a lawyer’s picnic”.
This argument values dislike of the legal profession above the rights of people and ignores the unfettering of the power of politicians.
The experience in the ACT with its new Human Rights Act also shows how shallow these claims of increased litigation are.
Under that legislative Bill of Rights, there have been few cases where the rights under the Act have been referred to and the overwhelming impact has not been on the hip pocket of lawyers but on bureaucrats who are now required to think about the rights of the citizens of the ACT when they implement policies and programs.
That is, the greatest impact has been to make government more accountable to the people in the way it does business.
In relation to specific groups such as Indigenous people, the anti-rights advocates argue that, in other jurisdictions that have had a Bill of Rights, such as the United States, human rights have not been protected.
It is also run in relation to the fact that Stalin’s Russia and Hitler’s Germany supposedly had rights protections in this form.
This is an argument that is based on two erroneous assumptions. Firstly, that a Bill of Rights will cure any rights violation (it won’t and I think that most advocates would only go so far as to say that it offers an additional buffer to or fettering of a government’s powers over its citizens).
Secondly, it assumes that laws act independently of the society by which they are created.
They do not, though they can sometimes lead to normative change within that community and the impact of anti-discrimination legislation is perhaps a good example of that.
Apart from the erroneous assumptions, it should also be acknowledged that in countries that do have a Bill of Rights, citizens have protections that Australians do not.
People who argue against a Bill of Rights often say that the system works so we don’t need to tinker with it, that is, “if it ain’t broke, don’t fix it”, that rights are already well protected in our country through both the common law and legislation such as the anti-discrimination and sex discrimination acts.
From an Indigenous point of view, this argument overlooks the many examples where relying on government benevolence has not been enough.
The removal of children is one and heritage protection is another.
From the continual extinguishment of native title rights to the abolition of a national representative structure, the experience of Aboriginal people often highlights how dependent we are on the benevolence of governments that too often do not have the best interests of Aboriginal people at heart.
I have yet to find an argument against a Bill of Rights that convinces me that there is a need to be more cautious and I have seen too many cases that have convinced me that we should be more proactive about rights protections.
And it is these experiences of the infringements of the rights of the vulnerable that need to remain our focus.
It is not enough to say that our human rights standards are better than other countries who have more brutal and systemic abuses of rights than those that occur on Australian soil.
I firstly question why it is worse for an Aboriginal child to experience third world levels of health care than for the child actually living in the third world.
And secondly, it is not enough that we are better than the worst offenders on a human rights report card; we should be the best society that we can be.
Bills of Rights are not about curtailing the rights of the majority. And they are not about giving more power to judges.
Bills of Rights are aimed at ensuring a better balance between the rights of individuals against the state and as such are more often an infringement on the rights of governments than the rights of people.
It is not lawyers who have the most to gain but politicians who have the most to lose if a Bill of Rights is imposed.
It makes them accountable to the constituency because they are required to acknowledge that the people who they govern have certain rights.
No wonder the neo-conservatives offer so much resistance to the idea.
Human rights trump customary law every time
Last month, the Northern Territory Court of Criminal Appeal increased the sentence of an Aboriginal elder who had raped a 14-year-old Aboriginal girl.
In the trial, the defence had argued that the man had not been aware of the fact that it was against the laws of the Northern Territory to rape a woman and instead, the judge had decided that the man had honestly believed that he was entitled, under customary law, to take her as a wife and to sodomise her.
He had given a one-month prison sentence in the first instance and this was increased to three years and 11 months, with 18 months minimum to serve, by the appeal.
This is not the first time that a trial judge has shown leniency to criminal behaviour against Aboriginal women by giving more weight to the “customary law defence” of older men than to the rights of the young girl who has been violated.
It should be noted that in other cases, Aboriginal women have strongly contested the misogynistic views put forward by defence lawyers - and happily accepted by magistrates and judges - and instead, these women assert that under our traditional cultural values, Aboriginal women are treated with respect, crimes of sexual assault are treated with great severity and that it is only since the sexism of the colonising culture was imposed on us that Aboriginal women were treated as inferior.
I am a Eualeyai and Kamillaroi woman. My nation is matrilineal and our creation spirit is female. As a child, I attended political meetings with my father and watched as the men postulated and shouted and then, in the end, the women would have the final say.
I look at women who I have grown up admiring like Marcia Langton, Pat Anderson, Mum Shirl and Norma Ingram and I did not see victims or submissiveness.
I saw women who understood that they are the backbone of our communities and I grew up respecting them and I feel that this was a strong cultural value that was imbued into me.
I was shocked as I began my professional career working in Indigenous affairs to see the level of sexism that pervades Aboriginal politics (the stories I could tell are not fit to be printed...) and it only increased my admiration of the strong Aboriginal women who lead our Indigenous communities who continue to insist that mistreatment of women is not acceptable under any circumstances.
At the same political meetings, I heard a lot about our rights. I grew up understanding that we have a right to our sovereignty, our self-determination, access to health, access to education and freedom from racial discrimination.
We often claim that we have a whole range of rights that are not recognised and protected by the Australian legal system.
For this reason, it makes no sense that we claim all of these rights that are long recognised as inherent in every human being, only to ignore them when that human being is a young girl exposed to great physical, mental and emotional danger.
There is no reason why our cultural values cannot conform to respect basic international human rights laws and indeed they should and must. All cultures around the world are expected to do so.
And if it is a matter of balancing the cultural rights of an old man to take a child bride against a child’s right to be free from physical, sexual, mental and emotional abuse, I think the latter has to win, every time. If we are to ensure the continuation of our nations and our cultures, we need to make sure that the rights of our children are protected first and foremost. Our elders should know better.
Whatever the “cultural way” to treat 14-year-old girls in our communities was centuries before, it is not part of our cultural practice to physically and sexually mistreat them now.
We have modern, contemporary Indigenous cultures and part of our cultural values must be to respect the human rights of our fellow Aboriginals (especially children) that we continually ask non-Aboriginal people to recognise and respect.
Giving light sentences to perpetrators of sexual and physical violence against children not only gives comfort to the criminals that their behaviour will be protected by the white legal system, it sends a terrible message to our young people of how little that system - and their own people - value them.
Hiding behind “traditional culture” to justify the actions is an insult to the victim.
The Northern Territory court was right to increase the punishment to better suit the severity of the crime.
• Larissa Behrendt is the Professor of Law and Indigenous Studies at the University of Technology, Sydney and is a Director of the Bangarra Dance Company. She is also a fortnightly columnist for NIT.
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