Bailey, Peter --- "Opinion" [2001] AltLawJl 85; (2001) 26(5) Alternative Law Journal 214

• OPINION
• On rights and responsibilities

OPINION
On rights and responsibilities

Who would have thought, five years ago, that Australian officials would be hunting round the Pacific islands pleading at great cost for a processing place for a paltry few hundred people seeking refugee status in Australia? Who would have expected our national government, in response to these arrivals, to enact -or even parliament to pass - 'emergency' legislation ousting the courts, paving the way for extensive use of executive power, using naval vessels for migration purposes, and becoming an object of derision around the world? Coming on top of tiffs with the main international human rights treaty committees about Australia's racially discriminatory treatment of its own citizens, its treatment of refugees contrary to international law, and its failure adequately to meet its reporting obligations, Australia's reputation as a 'good international citizen' is distinctly in disrepair.

The numerous failures are themselves the product of shortcomings in domestic observance of human rights. Australia's internal human rights record is increasingly poor. The original minimal deal with Aborigines and Torres Strait Islanders over land title in the Native Title Act 1993 was materially reduced by the 1998 amendments. Despite the Stolen Generations report by the Human Rights and Equal Opportunity Commission, no government apology has been made (though the Governor-General made a personal one), and no serious support is being given to the reconciliation process. Gaol conditions have continued to deteriorate, people for whom medical rather than custodial treatment is required are increasingly being incarcerated, there are strident demands for heavier sentencing. Funding of HREOC has been cruelly cut, its representation at Commissioner level of the main disadvantaged groups watered down by executive action. Here at least parliament firmly resisted governmental desires. The shift in taxation burden towards indirect taxes, and promises of major tax cuts for the wealthy, have exacerbated the trend to privilege, widening the gap between rich and poor.

Rejection by successive governments of the High Court's decision in Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20; (1995) 183 CLR 273 evidenced the growing lack of responsibility in human rights implementation. It brought together national and international concerns. The Court suggested that ratifying treaties meant the executive itself should at least be required to consider its own obligations under them, even if it could not mandate their implementation. The executive countered, saying no-one should expect that. Here again, parliament stood firm, and neither government was, fortunately, able to achieve enactment of legislation entrenching the executive declaration.

It is easy to blame successive governments for what has happened. Indeed, that in a democracy is as it should be. But why has it all happened? Neither governments nor oppositions (both have been involved) have had particularly nasty or evil Ministers. They have all asserted that this is what the people want. In the obsessive search for votes and power, they have pandered in an unprincipled way to the baser instincts of electors. They have not even tried to lead us as citizens towards a fully informed decision. The full facts, and the key relevant issues, have not been exposed. The 'talk to the nation' has become a means simply to gather votes, not to genuinely inform. Our actual or believed voting propensities have to a degree been responsible for these, in human rights terms, gross actions. That this could happen seriously calls into question the nature of democracy.

The wise Greeks of ancient times realised that democracy in the formal sense of ensuring all votes have the same value can lead, in human rights terms, to unsatisfactory results. Behind the formal requirements for equal voting rights (International Covenant on Civil and Political Rights, Article 20) is the substantive obligation to ensure informed participation. For democracy to work in a human rights respecting way, an educated, aware and mature citizenry is needed. Without vision and maturity, 'democracy' will stand for oppression, not liberty; for single interests and prejudice, not wise judgment; for 'wedge voting', not the community at large. The human rights vision is not about economic success and 'efficiency' in the narrow sense. It is about realising, in economic and social life, mutual respect for the dignity of each person.

The 1948 Universal Declaration of Human Rights (UDHR) declared that 'All human beings are born free and equal in dignity and rights ... and should act towards one another in a spirit of brotherhood'. Australians can act like that, as the marvellous success of the volunteers at the Sydney Olympics, and the many other efforts of organisations in civil society, so hearteningly demonstrate.

In its penultimate Article, the UDHR declares that 'Everyone has duties in which alone the free and full development of his personality is possible'. We are in a time when we as a people, and our governments, have not had the will to recognise and enforce rights. Nor have we had the will to accept the responsibilities and duties this entails. Successive recent governments have failed in their responsibility to show leadership in these fundamental issues. They have pandered to people's narrow views, not offered them a vision. They have not trusted the people, and the people have reciprocated. The law and its institutions have given something of a lead, but their voice has become muted: they and our parliaments need positive support from governments and people if we are to live in a country where the rule of law prevails and human rights are respected.

Peter Bailey

Peter Bailey teaches law at the Australian National University.