The United Nations Special Rapportuer on human rights and the fundamental freedoms of indigenous peoples reports that the Northern Territory Intervention is discriminatory.
Within the same time the former prime minister, who authorized the intervention and the suspension of the Racial Discrimination Act argues that Charter of Human Rights are counter-plroductive.
I am encouraged that the UN special investigator was given freedom of access and that his report will be published and acknowledged by the Government. There is a contrast with the case in the Howard years concerning immigration.
Professor Anaya from the University of Arizona is an expert on indigenous affairs and a professor of law. ABC News reports:
He has described the intervention as an extraordinary measure which infringes on the rights and self-determination of Indigenous people.
“In my opinion, as currently configured and carried out, the emergency response is incompatible with Australia’s obligations under the convention of elimination of forms of racial discrimination and the international convention on political rights,” he said.
“I hope that amendments to the emergency response will diminish or remove its discriminatory aspects,” he said.
. . . Professor Anaya has also urged the Government to take more holistic approach to tackle Indigenous disadvantage.
“It would seem to me that the objectives of the Closing the Gap campaign, the emergency response and other current initiatives and proposals of the Government would be best achieved in partnership with Indigenous people’s own institutions and decision-making bodies,” he said.
At the University of Western Australia, John Howard argued against the need for Charters of Rights, as currently exist in the ACT and Victoria. The Sydney Morning Herald carried an edited version of the Menzies Lecture. The core of the argument seems to be a notion of the supremacy of parliament as the responsible decision maker. He gives an illustration:
Comparing the Australian and Canadian approaches on gay marriage is illuminating. In Australia, the government which I led decided in 2004 that the Marriage Act should be amended to define marriage as a voluntary union for life between a man and woman to the exclusion of all others, thus precluding the possibility of recognising same-sex marriages.
In Canada it was not so simple. In a series of decisions the courts had declared that prohibitions on gay marriage, enacted by some provinces, were contrary to the Charter of Rights and Freedoms. Only by Parliament passing a law expressly overturning those decisions could the provincial prohibitions have been revived. This was a theoretical power only. In practice it was not a realistic option.
Thus it was not Parliament which expressed the will of the Canadian people on this sensitive social issue, it was the courts. Surely that was wrong. Irrespective of the views one might hold on the issue, don’t the people, through their elected representatives, and at all stages, have the right to decide those issues?
Earlier in the presentation, the guarantees of human and political rights in Australia were said to be:
. . . a robust parliamentary system, an independent and incorruptible judiciary and a free and sceptical press.
I would suggest that members of parliament are not “typical Australians elected by ordinary Australians”. This sounds to me like semantic confusion masquerading as rhetoric. What are the practical electoral realities and definitions. To assume that those who propose a charter of individual rights are just members of one of the elites is absurd. I can vouch for the veracity of this case.
The robustness of the parliamentary process, not the commitment of individuals members, is in question in large part because of the legislation passed by John Howard’s government, particularly the Intervention and the terror laws.
As electoral divisions increase in size and redistributions are made, the identity between the people and their representatives becomes more remote. Elections seem in large measures beauty contests between leaders, and are decided by marginal electorates, with the pre-eminence in recent years of wedge politics, or at least attempted tactical and strategic policy positioning. The gay marriage rejection might be seen as part of a general strategy.
Furthermore legislation is complicated and driven through on the numbers, dependent in part on the numbers in the Senate which is not democratically represented. Often the special interest lobbies will know more about the legislation that the supposed legislators. What can pass in the Parliament consists of what can be politically opposed, not just the institutional process, but the political climate. We have observed injustice done in the climate of fear created around terrorism and its related wars of occupation and intervention. We have witnessed the politics of scapegoating.
The free and sceptical press is part fantasy and newspapers with free to air television are economically challenged. Significant drying up of the rivers of advertising calls into question their business models. Media ownership has consolidated. The democratic watch dogs, with their own self interest to the fore, often are watching and not barking. The professionalization and centralization of control of political parties, of which John Howards tenure is testament, is part of the close affinity of modern politics, polling and public relations
That leaves the judges. We have a Constitution that gives rights to the Federal Government and States, but not local government. The later point is relevant to Indigenous Communities. Common Law in one understanding is judge-made law. Judges in Australia have a history of an intimate relationship with determining questions of rights, so should they not equally be able to determine questions of individual relevance in Charter based on the United Nations declarations, which in large part or in full Australia is already a signatory?
By trying our practice to international standards we are acknowledging that human rights and the law should be exercised as a relationship to all human beings and to the social and natural environment.
On these matters, John Howard is not to my mind persuasive. There may be more compelling arguments for his case.
ELSEWHERE:
I did not want to mention this piece of recent news, but Bernard Keane at Crickey has no such inhibitions.
At Big Ideas on ABC National Radio – our poor public-owned substitute for the Murdoch quality media (that we should pay for) – Professors Frank Brennan and Helen Irving review the National Consultation on Human Rights. ( I can see someone was looking for this the other day, and I feel really bad about not putting the link. It is the sort of thing I am interested in as too.)