Human Rights in Australia

The discussion on human rights isn't a new concept,				constitution that speaks of our values, that talks
ever since man could conceptualize about his world				about our respect for human dignity, we have no
there has been dialogue on the subject, even one of				words that school children can recite and respect in
the Pharaohs of ancient Egypt speaks of the topic				their classrooms. Not only would a bill of human rights
when he addresses his Viziers "When a petitioner				protect the minorities that a true democracy should,
arrives from upper or lower Egypt - make sure that				but would also work as a form of nationalism, a way
all is done according to the law, that custom is				of defining the Australian essence into words that
observed and the right of each man respected."				we can know as well as feel. Instead of being united
(Pandey, 1999, p. 19) But it wasn't till after the				under the original network of British interest, we
Second World War that the discussion on human				would be united under something written in the
rights began to come into popular consciousness.				Australian tongue and expressed from the Australian
Since the 19th century there has been a wider				heart. This isn't a rhetoric statement smeared in
phenomenon where people all over the world are				idealization, there is genuine reports from countries
feeling a greater concern for their fellow man, it all				around the globe that such an act did inspire a new
started with the abolition of slavery in the United				found sense of unity as the former prime minster of
States in 1863, followed by Brazil in 1880 and before				Canada did intend, Robertson (2009, p. 49) states
that the English colonies in 1807. But twenty years				"Pierre Trudeau added it to the constitution for the
before Britain made this law, Captain Arthur Phillip in				avowed purpose of creating a unified sense of being
1787, while waiting for the first fleet of Australia to				'Canadian'. The charter seems to have served this
set sail for its voyage was quoted as saying, "There				purpose: surveys suggest it quickly became popular
can be no slavery in a free land and consequently no				and was viewed as having strengthened Canadian
slaves." (Robertson, 2009, p.51) This could very well				identity." This occurred because it allowed the
be our first law, and still at a time where America's				Canadian people to believe in words that although
fore fathers were still whipping and using slaves.				they were universal in their appeal, the content and
Australia's history with human rights is an important				structure of the sentences was strictly Canadian and
one, more important then I believe Australians even				communicated Canadian values based on their own
know, so important in fact that Australia's first				imaginations and shared history. This can also be seen
introduction to the world stage was our proposals to				by analysing the American system too, the
the Universal Declaration, because the Australian				constitution in America is the most important symbol,
Herbert Evatt was the president of the United				it's constantly cited in schools by school children, it's
Nations assembly, helped draft the Universal				quoted in court rooms around America and anytime
Declaration, and was the first to suggest at the Paris				anyone hears the word constitution one automatically
Peace Convention in 1946 a European Court Of				thinks of the United States of America. But not only
Human Rights, which is now the most influential court				will a bill of human rights give Australia's identity a
in the world. So how did we go from being a pioneer				definition in words but it will also have wider impacts
in human rights, to now being the only country in the				on common law.
Western World to not have a bill of human rights? I				A bill of human rights in Australia would simplify the
believe we need a bill of human rights because it				law system so that every Australian can understand
would give the minorities a legislative voice, it would				how the system works and what rights they are in
strengthen the unity of the Australian people and				breach of, as Robertson (2009, p. 105) quotes "the
would give a more democratic voice to the judiciary,				public needs to comprehend judicial decisions and
even though some prominent leaders in Australia				lawyers need clarity so that they can advise their
believe it will do the opposite of that.				clients in the future. A bill of rights would, in many
When we were federated in 1901 we became a				cases, enable the court to avoid lengthy discussions
nation, it was unknown what that identity was but it				of previous cases and begin anew by applying
was very clear as to what the values were of the				charter principles to the facts in simple and
individuals who aided in making that event a reality.				straightforward language." No longer will judges have
Sir Henry Parkes was the father of federation, and				to resort to hundreds of pages of previous cases to
his goal was to create a binding system of values				find a precedent to apply the law, instead it will be
that could unite all states into a national identity. But				laid straight out for every Australian to know. As
as a human being of 2009, upon looking back at his				societies expand and grow over time, their
intentions it is obvious now that it wasn't a bond				theoretical knowledge also expands, in every court in
based on the equality of humanity, but rather a need				the western world their theoretical knowledge is
for racial purity. In fact all the founding fathers of				evolving with the help of a bill of human rights.
that age were racist in their outlook and British in				Canadians, The British and The United States are all
their loyalty, but this isn't the issue, they weren't bad				sharing their findings based on a bill of human rights
men, that's just a reflection of the moral intelligence				framework. Australia has produced some great
of the society at the time, the real issue is that the				judges such as Sir Owen Dixon and Sir Anthony
constitution we have today is one of the oldest in				Mason, but if we fail to be included in these
the western world, which means it's still expressing				exchanges of ideas then our law system will become
values that contradict human dignity. We don't need				out dated and stale. But a lot of critics of a bill of
to change the constitution to change this				human rights suggest that the judiciary will be given
contradiction; we simply need a statute that will close				too much power because important policy making
the space. Our finding fathers left out human rights				decisions that parliament usually create will be given
from the constitution on purpose, they didn't want				over to the courts. The ex premier of NSW Bob Carr
equal rights for all human beings under the Australian				says, "A bill of rights would make a fundamental shift
State, they didn't want women to vote, they				in that tradition, with the parliament abdicating it's
considered Aboriginals less than human and all of				important policy-making functions to the judiciary."
them wanted a white policy where immigrants had to				(Robertson, 2009, p. 162) This is indeed wrong,
go through a number of tests before being allowed in				because if the bill of rights was a statute then
to our country, and in many incidents were tested				parliament could easily take it away and put things
for languages that weren't even their native language				the way they want, and besides, a completely
just so they wouldn't be allowed in. The reasons for				independent judiciary that has the power to protect
federating are less the noble, as Robertson (2009, p.				the liberties of the people in the face of government
58) suggests, "The national objects of Federation				is what democracy is all about.
were to enable a common defence policy, the				Until the quest for human rights go from rhetoric to
abolition of interstate customs duties, a national				legislation then the fundamental rights of human
currency and a postal service, and so on, but it drew				beings in Australia is up for grabs, the UN General
on its main emotional support from a desire to erect				Assembly President said that, "The quest for the
a barrier against Chinese immigrants and to stop				basis of human rights to which philosophers, jurists
Queensland planters importing Kanakas from the				and politicians devoted their interest and concern in
Pacific Islands." The shear lack of respect for human				the past has...lost its significance. We can affirm today
equality was even expressed openly by state				that human rights, beyond the theoretical concepts
leaders, as Sir John Forest, premier of Western				that justify the sacred and inviolable character of
Australia, spoke of the "great feeling Australians had				human rights, must be recognised and protected
against coloured peoples."(Robertson, 2009, p.59) He				simply because this is what all humankind believes and
also passed a law, which other states copied, that no				desires, and because this has been the express will
African or Asian immigrants could work in the mines				of the international community as reflected in the
or gets a license to work in a mine. A democracy				Universal Declaration." (Chandler, 2002, p.1) So if the
isn't just the voice of the majority, but the voice of				international community desire it, if the Australian
the all, and if the minorities are being denied their				people desire it, then why don't we have it? Without
natural rights as human beings how can we call				it minorities aren't protected, and if their voices aren't
ourselves a true democracy? If this is our history, if				heard and respected then how can we call ourselves
this is the outlooks that chose to ignore human				a true democracy? Without a bill of human rights
rights, how can we respect the fact that we don't				Australia has no concrete definable identity that
have one?				school children can cite in school and be proud about
In the First World War our prime minister spoke of				and lastly without one the common law is going to
how we would defend Britain to the death. So not				remain contradictory and confusing to the everyday
only is our constitution created by men who were				citizen. For these three reasons alone it is obvious
racist in their values, but also men whose hearts				what needs to be done, it doesn't have to be done
were dedicated to a country that wasn't Australia. So				because all the other nations have done it, but it's
how as a so called independent sovereign nation				something we need to do as Australians living in a
respect a constitution that has nothing to do with				democracy, as Brennan (1998, p. 11) quotes, "Our
who we are, where we are going or where we have				task is not to legislate some ideal bill of rights to be
come from? We are one of the only countries not to				placed on show internationally. It is to reduce the
have an independence day, and this is probably				democratic deficit in Australia so as to ensure the
because we aren't truly independent yet, we still				protection of basic rights and freedoms at the least
need the governor general to sign on the dotted line				cost possible to the well-being, understanding and
before we can create a new law. We don't have a				social acceptance of the body politic.