Costello, Sean --- "Editorial: Protecting unknown rights" [2015] PrecedentAULA 30; (2015) 128 Precedent 2

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PROTECTING UNKNOWN RIGHTS

By Sean Costello

Debates about which rights are fundamental in Australia, and how best to protect them, are intensifying. Barely a week has gone by in recent years without a headline about ‘rights’.

Yet the discourse has failed to clarify two fundamental questions: exactly which rights are enshrined now, and should the government be legislating others? The ongoing reluctance, and at times hostility, from governments to legislate human rights is not surprising. These laws, after all, primarily seek to restrain their power. What is surprising is the lack of challenge as to why governments exercise that power, and what that says about our democracy.

In this edition of Precedent, Benedict Coyne examines our long history of human rights debates, and urges Australia to follow virtually all other western democracies in adopting a Bill of Rights. As Coyne notes, Australia is the only liberal democracy and common law legal system without such legislated human rights protection.

Just how urgently this change is required is conveyed by Professor Jude McCulloch’s review of the significant anti-terrorism legislation that has been added to the national statute book over the last 14 years, much of which is ‘pre-emptive’ and incompatible with human rights.

Rights reform is particularly critical for Australian women, although legislating civil and political rights may not be sufficient. Professor Beth Gaze argues that rights most important to women are often devalued, and that the priority is to address structural gender bias, women’s rights to work and equal pay.

Another feature of recent international human rights discourse has been the benefits to business of respecting human rights. Professor Gillian Triggs notes that respect and promotion of human rights, and a diverse workplace, contribute to enhanced innovation and productivity, and are advantageous in the global market.

Even nations with human rights legislation have struggled to deal with the issue of hunger strikes in detention settings. Ebony Birchall explores the Commonwealth regulations on the treatment of hunger strikers in immigration detention, which allow the administration of non-consensual medical treatment. Several legal issues arise from these regulations, including their potential contravention of international human rights law.

Concerns about the Australian government’s treatment of asylum seekers are further explored in Dr Emma Larking’s article on the recent Australian Human Rights Commission Report, The Forgotten Children, which examined the treatment of children held in immigration detention. Sadly, there are many parallels between this report and 2004’s A Last Resort.

Similarly, Joshua Dale goes to the nub of the asylum seeker issue by asking if, leaving aside our international human rights obligations, Australia’s system of immigration detention is unlawful at common law. Significantly, Dale questions whether the pursuit of such actions might be a catalyst for the government to reconsider mandatory detention.

A different aspect of Australia’s detention system with serious human rights implications is the growing overcrowding in our prisons. The ‘tough on crime’ rhetoric of governments has resulted in rapidly rising prison populations around the country: Anita Mackay outlines how overcrowding is resulting in double and triple bunking, reduced access to medical and other services and increased risk of violence.

Phillipa Alexander takes a very practical approach to rights protection, and examines when and how federal courts will depart from the principle that an unsuccessful party will bear the costs of discrimination proceedings, which often involve significant power imbalances.

In the context of the international trend for mental health law to be reconsidered in light of the 2006 United Nations Convention on the Rights of Persons with Disabilities (CRPD), which guarantees people with disability the right to legal capacity, Australia has an opportunity to lead. As Dr Anna Arstein-Kerslake notes, mental health laws intersect with human rights concerns, as they generally regulate processes of involuntary detention and treatment.

The ACT is among the first jurisdictions to have attempted to recast mental health law in light of the CPRD, which informs the conduct of public authorities through the mechanism of the ACT Human Rights Act. Renuka Thilagaratnam and I review the first decade of Australia’s first ‘human rights jurisdiction’, and find a distinct cultural shift in the attitude and awareness of the legislature of the potential for new laws to infringe human rights.

Sean Costello is Senior Human Rights Legal Adviser at the ACT Human Rights Commission. PHONE [phone] EMAIL [e-mail].