It is not surprising that Professor Gillian Triggs,
President of the Human Rights Commission, gave a thoughtful, though provoking provocateur’s
address at the Sydney Salon last night (22nd August 2016). It is a little more surprising that she laid
the blame for Australia’s recent performance on human rights issues at least
partially at the feet of the Australian courts.
However, coming from such an eminent jurist, it is hard to ignore her
criticism. She cited the recent decision
in the High Court of New Guinea which effectively outlawed the Manus Island
detention centre on the grounds that it breached the right to personal liberty
in the PNG constitution. By comparison, the Australian High Court found the
existing framework of third country detention centres to be legally and
constitutionally valid. She cited a
further comparison between the USA Supreme Court ruling in 2015 which legalised
same sex marriage, and the lack of any similar rulings locally.
The reason for these discrepancies is, of course, the lack
of a guarantee of basic human rights in the Australian Constitution. Triggs
examined why this is so, and more importantly, why it has not changed. She concluded that there was a strong suspicion
of judge made law in Australia.
Suspicion by the general public is understandable. After all, the normal
citizen most often meets judges in the minor courts defending drink driving
charges. However there is suspicion by the political classes in general. In this connection, she cited Bob Carr whose
vocal opposition to a Bill of Rights in 2009 put paid to Frank Brennan’s
efforts to bring this legal instrument to life.
She noted the practical and legal objections to a Bill of Rights, but
also observed that the New Zealand Bill of Rights which was enacted in 1990 has
not had the dire outcomes that were predicted by Carr and others. Politicians, of course, see the ability of Judges
and courts to overturn their laws as an unjustified curtailment of their power. Anyone with even a few years of high school
history under the belt, will know that curtailment of executive power is
exactly what is intended by the doctrine of the separation of powers which
gives courts the right to review laws.
It is the foundation of representative democracy, unfortunately
crumbling in the Australian context. The
transformation of parliament into a rubber stamp for the ruling party is a
further demolition of the basic checks and balances in the system.
The outcome of this situation is that Australia is
increasingly held in contempt in international forums for its treatment of
first peoples, for its policy on asylum seekers and, surprisingly, the extent of
domestic violence. Most of the international
conventions covering these issues, while often based on major Australian
contributions, have never been adopted under Australian law. No one seems to know, few seem to care.
The dog whistle here is racism. The founding fathers were unwilling to
institute a bill of rights into the Australian Constitution as it was seen as
an avenue of challenge to the White Australia Policy. Perhaps it still is.
One of the more depressing points that Professor Triggs
shared with the Salon was the result of a survey which illustrated that a large
proportion of the Australian population did not know that Australia had a
constitution, but an overwhelming majority were prepared to rely on rights
which flowed from the American constitution “Taking the 5th”.
Perhaps the answer lies in education.
However, education is in the hands of the politicians who insist that
Australian Students learn about Kokoda Track and Gallipoli at least five or six
times during a standard school education, but they never learn about the critical
concept of the separation of powers or, so it seems, the difference between the
Australian Constitution and US television programs.
There were, of course, many questions and discussion points
raised, but the one I had for her was this.
I am angry about the trashing of Australia’s reputation, I am horrified
by the acts carried out by our government in my name, I am mortified by the
unleashing of petty (small, not unimportant) racism and vilification. I am appalled by the treatment of women and
the still unconscionable response of a significant part of the police
force. Yet, even as a white privileged
male, I feel powerless. I don’t know
what to do, and I don’t know where to start to find out what to do. I only know
I want to act.
Professor Triggs response did not immediately provide me
with clarity or direction. In summary
she said (my words), this is a democracy, numbers are important. Stand up and
be counted. Speak out wherever possible.
It seemed unsatisfactory, but I realise that the problem is
the strength and frequency of the wrong voices.
Sydney Salon is one place where considered and thoughtful voices have a
forum. I hope this post will allow that
discussion to continue.
