Professor Gillian Triggs, President of the Australian Human Rights Commission has called for renewed discussion on greater legislative protection of human rights.
Speaking at the Tony Fitzgerald Lecture at the State Library of Queensland on September 27, Professor Triggs suggested consideration of some form of Bill of Rights for Australia was essential.
“As a nation, we are isolated from the jurisprudence of comparable countries and indeed most of the world. We have become exceptionalist in our approach to international standards,’’ she said.
“I know there is no political appetite in Canberra for a legislative Bill of Rights but I think we need to reignite the national discussion.”
She highlighted Australia’s history of leadership in developing and ratifying a body of treaty law that included the Covenant on Civil and Political rights, the Convention on the Rights of the Child, the Refugee Convention, the International Covenant on Economic, Social and Cultural Rights and the Torture Convention.
“Despite this historical and genuine commitment by Australia, I suggest that over the last 15 years in particular, we’ve faltered in our commitment to human rights”
Professor Triggs highlighted examples where fundamental human rights are at risk, including new counter-terrorism laws and laws on immigration and refugee status.
She said many counter-terrorism laws did not meet the legal test of necessity or proportionality to have the legitimate aim of protecting national security.
“Many of these laws breach our traditional freedoms. Australia has been accused of hyper-legislating in enacting more laws than comparable states like the United Kingdom and the United States have done.
“Indeed, this coming parliament will consider whether control orders should apply to 14-year-olds and whether those who’ve been convicted of terrorist-related offences and serve their sentences can be held indefinitely by the executive.
“New laws allow access by security agencies to our metadata without a judicial warrant, contrary to many rights including privacy.
Parliament fails to protect rights
“Parliament has failed in its primary duty to protect core principles of freedom that underpin our liberal democracy.”
Professor Triggs said courts as well as parliaments were disempowered when considering human rights or common law freedoms.
She cited examples of the treatment and detention of Indigenous juveniles in the Northern Territory and removal of asylum seekers to Manus and Nauru for processing and indefinite detention.
“While Australia has ratified core human rights treaties, we’ve not implemented those treaties in our national law. Australia has a parliamentary approach to the protection of human rights.”
What then, are the options for human rights protection, she asked?
“What can we do when a majority government in collaboration with opposition parties passes laws that explicitly without ambiguity breach our fundamental common law freedoms in the interests of national security?”
Democracy and executive discretion
She said that as respective parliaments become increasingly fractured and dysfunctional with the result that governments cannot achieve their national objectives, the growth of executive discretions challenge the strength of our democracy.
“I suggest we should be alert and alarmed by the failure of our legal system to protect our fundamental rights, especially the failure of parliament and courts to protect the rights that have evolved over millennia.”
The Tony Fitzgerald Lecture Series and the Tony Fitzgerald PhD Scholarship Program was launched in 2009 by Griffith’s School of Criminology and Criminal Justice to mark the 20th anniversary of the release of the Fitzgerald Report. The latest lecture, hosted by the Griffith Criminology Institute, is the fourth in the series.
The Fitzgerald Report marks a watershed in Queensland and Australia’s political history. In addition to justice and governance reforms, the report and inquiry served as a catalyst and inspiration to many researchers and practitioners working in these fields.