Five years ago I began my term as the President of the Australian Human Rights Commission, confident in the ability of the common law and a robust democracy to protect human rights. I leave convinced we need a major legal and cultural overhaul in order to deal with the human rights challenges of the 21st century. I have spent almost a half a century in the legal profession and over a decade on the bench of the Federal Court. It is no secret that the mandatory detention regime caused deep discomfort in parts of the Federal Court judiciary. In 2003, I held that the detention of Mr Al Kateb – a stateless Palestinian man locked in immigration detention – was lawful despite evidence that there was no foreseeable end to his detention. Ultimately, the High Court confirmed that nothing in the Migration Act or the Constitution prevented indefinite detention.
As a judge, I was not asked to understand the emotional trauma of the detainees that appeared before the Court. I did not know the conditions in which asylum seekers were detained – nor did I ask. Although international law prohibits inhumane and arbitrary detention, Australian law does not.
The results are troubling. As a judge, I felt the decision at which I arrived was legally correct yet morally reprehensible. As President of the Commission, I was repeatedly confronted with the sorts of human rights problems I did not see sitting in a Court building. I stood in the Management Security Unit at Villawood Immigration Detention Centre – a small, bleak space where long idle hours corrode the mental health of detainees. At Baxter I saw children – the same age as my own – and witnessed in their disturbed manner the profound damage wrought by long-term detention.
It is sometimes said that the best human rights protection is the fair-mindedness of the Australian people. Without doubting the capacity of Australians for compassion, the absence of legal remedies means that human rights abuses are not always made public. Many minds had already disintegrated in long-term detention before the story of Cornelia Rau hit the front page.
I suspect the reality is that members of the judiciary, like people on the street, have little occasion to engage face to face with the human rights problems faced by their fellow Australians.
When I was a judge, although I sometimes had doubts about the laws I was required to apply, I did what many people do and placed my faith in Parliament to correct the harshness of the law.
At the Commission I soon realised my faith in current parliamentary processes to protect basic rights was naive. We frequently scrutinised the human rights compatibility of new bills. As the President, I saw major legislation – including counter-terrorism bills and the package of bills to enable the Northern Territory intervention – rushed through Parliament with grossly inadequate consideration of the impact of these laws on basic rights.
In 2005, I warned new counter-terrorism laws were in danger of reflecting a police state where sweeping police powers were immune from effective challenge. While there was a need to introduce new laws to deal with the threat of terrorism, some new offences and powers were so broad in scope, they almost invited abuse. The potential of these laws to be misapplied in ways that ruin reputations and trample on basic rights was confirmed last year by the arrest and detention of Dr Haneef.
Now, after five years at the Commission, I can no longer in good conscience support the familiar refrain that rights are best protected by the common law and parliament.
What I would like to see is a new approach to making law and policy that doesn’t ignore the human rights picture. I would like to see the legislature focus on solving existing human rights problems and preventing human rights problems from happening in the future.
The federal Government proposes to hold a public consultation about how best to protect human rights and freedoms in Australia. I believe this consultation should be welcomed for one simple reason. In a country where every night over 100,000 people are homeless, and Indigenous Australians still die 17 years earlier than their non-Indigenous counterparts, we can and should do better.
I am now convinced that the best way to ensure that all three arms of government – the executive, the legislature and the judiciary – take care when they make decisions that impact on basic human rights is to introduce a statutory charter of rights. As a Federal Court judge, I did not see the need.
The old argument that the current system is working well just does not stand up.
Opponents of a charter should spend less time glossing over the inadequacies of our current arrangements and more time formulating positive proposals to better protect people for whom the enjoyment of basic rights are still out of reach.
We should not forget the children taken away and the laws that punish the kids of same-sex families. And we should not forget the damage to Australia’s international reputation that occurs when we fail to practice what we preach. A statutory charter should not allow Courts to strike down laws that are incompatible with human rights. However, if we are serious about implementing our international obligations, we should give Courts the power to provide meaningful remedies to individuals who are victims of human rights violations.
The suggestion that these kinds of arrangements will encourage judicial activism is simply scaremongering. The interpretation of human rights by the judiciary will not be an imaginative exercise. Instead, it will occur in accordance with the predictable traditions of legal reasoning. Human rights are not new in Australian legal jurisprudence, just fragile and fragmented.
I believe – perhaps optimistically – that the main obstacle to improving human rights protection in Australia is not a lack of care, but a lack of understanding.
If the proposed federal Government inquiry into human rights protection can engage ordinary Australians with the kinds of human rights issues that came across my desk in the last five years, the case for change might just succeed.
John von Doussa QC is former President of the Australian Human Rights Commission