Fears that such a rights charter would infringe our liberties ignore the voices of the vulnerable and dispossessed, writes Caroline Fleay
WHILE the Rudd government announced last week that it supports calls for human rights education and greater scrutiny of legislation that might breach human rights, it stopped short of supporting a charter of rights. Clearly the government is nervous about being seen to be too supportive of this approach to protecting freedoms and entitlements. This nervousness no doubt reflects the fears that have been publicly expressed since the Brennan committee reported to the federal government last September. The report followed the national human rights consultations held throughout Australia last year and its recommendations include a federal charter of human rights. If you have missed the subsequent commentary, let me give you some of the highlights.
In a measured rejection of calls for a human rights charter, earlier this year journalist Paul Kelly argued that the majority of Australians do not want such legislation. In a not-so-measured response, lawyer James Allen described the national human rights consultations process as “one-sided hocus pocus”. Elise Parham from the Centre for Independent Studies went so far as to declare that adopting such a charter would result in a “Shakespearean tragedy”. She cautioned that, unlike other laws, a charter’s rights could directly influence the actions of government and the judiciary, and indirectly affect the actions of those in business and the community.
But surely human rights legislation should set reasonable limits over the actions of government and other actors? This seems to be the crux of the concerns of these critics of a charter, and was made most explicit in Joe Hockey’s claim last month that “personal and social liberties are being trampled in the pursuit of human rights”. The theme emerging is a fear about what will happen if federal legislative protections for human rights in Australia are adopted. Or, to put it less kindly, a desire to incite fear about what will happen if a human rights charter was to be adopted – namely, that our individual liberties would be dangerously limited by any substantive articulation of human rights in federal legislation.
This is an understanding of individual liberties rooted in the liberalism of the Enlightenment. For these philosophers it was important that individuals retained a sphere of freedom in their lives within which government could not interfere. Indeed, one of the purposes of government was to protect such a sphere of freedom in order for individuals to be able to pursue their version of the good life. Of course, there ensued much debate about the extent of such individual liberties. John Stuart Mill, Hockey’s favourite philosopher, argued that there should be limits on our individual liberties when their pursuit threatens the liberties of others. That is, individuals should only be free to pursue their version of the good life to the extent that they do not prevent others from doing so.
John Stuart Mill was onto something. We need to accept some restraints on our behaviours to ensure we don’t unnecessarily infringe the freedoms of others. But how should we articulate what these restraints should be? This is where the language of human rights can help.
Human rights is based on the assumption that as humans we all share certain rights that need to be realised for us to live a life of dignity. This includes the liberties considered important by the Enlightenment liberals – civil and political rights such as freedoms of expression, religion and association, and the right to participate in the political life of your society. But the human rights language has also evolved to include economic, social and cultural rights, such as rights to adequate housing, education and healthcare, and to access the culture of your community. Similarly, the right to self-determination has come to be considered important for being able to live a life of dignity.
It is this broad inclusion of human rights that has given this language its potency for vulnerable members of societies. The language of human rights has been adopted by a growing number of the dispossessed and politically vulnerable to assert their claims for a life of dignity. Some of their voices were heard in the national human rights consultations.
By asserting that we are all rights-holders, the language of human rights places obligations on others to respect and protect our rights, particularly governments. Conceiving of everyone as rights-holders gives agency to those who are vulnerable and least able to access what they need to live a life of dignity. It provides an important alternative to notions of charity where resources allocated to the vulnerable depend almost totally on the benevolence of those who can afford or have the power to give.
Human rights recognises that how we treat the vulnerable in our society is one of the most important measures of our humanity. In a society that is based on the rule of law, surely we should be interested in passing laws that recognise we all have rights to what we need to live a life of dignity. These laws should include the broad range of human rights – not just the individual liberties articulated in civil and political rights, but also social, economic and cultural rights, and the right to self-determination. Fears that such a human rights charter would infringe our individual liberties ignore the voices of the vulnerable and dispossessed. They may not be the majority in Australia but it is up to us all to acknowledge their importance as fellow humans. •
Caroline Fleay is a lecturer at the Centre for Human Rights Education at Curtin University.