Indigenous Law Bulletin
As the saying goes: there is nothing to fear except fear itself. The crucial
issue in any discussion about the protection of human
rights in any written form
is simply this: can the situation get any worse than it already is? There is
nothing to gain from the
status quo but we can move forward. The main
dilemma really should be whether the proposed Charter ought to be
constitutionally entrenched or
take the form of a simple statute. We must
remember the relative ease with which a statute can be changed, as compared with
of amending the Constitution. Whether one outweighs the other is
a matter for further consideration. However the debate should not be focused on
which model we
ought to pursue, but rather how soon we can get it
Terry Chenery, Aboriginal Justice Advisory Council (NSW)
The reality of the matter is that constitutional change is not something that ‘just happens’. A National Charter of Rights may not be the best avenue to protect rights, but history suggests that it would be a far more straightforward path than a national referendum. A Charter of Rights offers two potential benefits: it could provide for some first instance improvements in the interpretation of laws and policies that impact upon minority groups. It could also help the wider Australian public understand and become familiar with principles of equality and human rights more generally.
If a Charter of Rights is to assist in educating all Australians that we are all human beings, that we should all be treated equally before the law, then let’s head down that road. Who knows? Maybe one day we can also have frank and open discussion about how to reform our Constitution to protect all Australians.
Eddie Cubillo, University of South Australia
Australia needs a National Charter of Rights to protect the human rights of Indigenous Australians, however it will not be effective unless it is constitutionally enshrined. As Kruger v Commonwealth demonstrates, Indigenous Australians have no guarantee of equality before the law. At a Federal level, there is currently no guarantee that the constitutional race powers will only be used for the benefit of Indigenous Australians. We have seen that Federal Parliament can suspend the operation of the Racial Discrimination Act and then act in a manner that is racially discriminatory towards Indigenous Australians. The Northern Territory Intervention is a good example of this. Simply enacting legislative protection is not an effective means of protecting Indigenous human rights: Parliament could expressly override such a Charter in the event of ‘exceptional circumstances’, or simply by enacting subsequent legislation. Therefore we need to have a stronger constitutional basis to ensure that the human rights of Indigenous Australians are protected.
Marcelle Burns, Queensland University of Technology
Those opposed to the Intervention, they want to protect us from white racism
and Government. But our people are dying from ignorance
and violence in our own
communities. The right to be safe from violence is a basic human right
that is getting overlooked in debates on human rights … We need laws that
protect all of us, women,
and children as well as men, victims as well as
perpetrators … We need the right to a peaceful and happy life, and
Bess Nungarrayi Price, Yuendumu, Northern Territory
The Northern Territory Intervention brought to light the flaws in our legal system to offer redress to those who experience the harshest discrimination. In the Northern Territory, Indigenous people have been placed at the margins of the legal system. This perpetuates a history of legal exclusion. The Intervention legislation excludes the right to administrative review for decisions made in relation to quarantining an Indigenous person’s income. The High Court, through its narrow interpretation of ‘just compensation’, closed another legal avenue for Indigenous applicants opposing the leasing of their land. At the same time, the Federal Government has remained steadfast on its decision to suspend the Racial Discrimination Act. There are currently appeals to the United Nations Committee on the Elimination of Racial Discrimination, but a National Charter of Human Rights could offer a domestic mechanism for redress. It is not only Indigenous peoples, but all marginalised groups, that would stand to have their rights protected under the Charter. The debate should not be about whether we ought to have a Charter, but what rights that Charter will protect.
Dr Thalia Anthony, University of Sydney
The consultation for a National Charter of Human Rights is an important development for the Australian political and legal system. Currently we have ineffective protection and recognition of our fundamental human rights. The insecure nature of statutory rights and the common law is insufficient. It is difficult to measure how effective a Charter would be for Indigenous peoples because it is not clear what kind of model will be adopted. Given the historical treatment of Indigenous rights in Australia, a stronger model would be more useful than a weaker one. A weak model would still permit the legislature to pass laws to our detriment. It would not prevent the introduction of future laws such as those contained in the NT Intervention package. In all likelihood, such a model would do little more than require further civic dialogue, or perhaps delay the passage of such bills. At most, Indigenous peoples would benefit from a Charter because of the flow-on effect of public education about human rights. Perhaps, with a deeper community understanding, national debate about Indigenous rights, and how best to protect them, will become more sophisticated.
Megan Davis, University of New South Wales