ISSUES PAPER: DECEMBER 2008  

The Uniting Church and an Australian human rights act

The Uniting Church and human rights

The Uniting Church's commitment to an Australia human rights act

The state of human rights in Australia

Why a national human rights act?

How would it work?

Who would benefit from a human rights act?

Case study: Human rights and homelessness

Rights and responsibilities: caring for each other in community

Which rights would be included?

Consultation with the Australian community

Useful links for more information

The Uniting Church and human rights

Christian support for human rights rests on the understanding that the community flourishes when all people are included and accorded the dignity and respect they deserve as beloved children of God. Human beings are made in the image of God, and as such are precious, capable of marvellous things, and entitled to dignity, compassion and respect.

In response to the Christian call to stand with people who are marginalised, poor and oppressed we have a responsibility to contribute to the building of societies in which all people are valued and respected. The Uniting Church seeks for each person the conditions that enable them to thrive and to reach their full potential.

The Church has been a church of social justice since its inception. In its inaugural 'Statement to the Nation' in 1977, the Uniting Church in Australia outlined its commitment to promoting and upholding human rights and the democratic process, in recognition of the value of each human being:

We pledge ourselves to hope and work for a nation whose goals are not guided by self-interest alone, but by concern for the welfare of all persons everywhere – the family of the One God – the God made known in Jesus of Nazareth the One who gave His life for others.

Over its life, the Uniting Church has made strong and unequivocal statements in support of human rights. We have, for example, drawn attention to public policies which have had devastating impacts on Indigenous Australians and refugees and asylum seekers and that have impaired the right to a fair trial and to freedom of speech and association.

In 2006, the National Assembly of the Uniting Church adopted the human rights statement 'Dignity in Humanity: Recognising Christ in Every Person'. This resolution laid out support for international human rights instruments and pledged the church to critically assess national and international policies against these instruments. It committed the church to uphold human rights and stand against human rights violations, stating:

The Uniting Church believes that every person is precious and entitled to live with dignity because they are God’s children, and that each person’s life and rights need to be protected or the human community (and its reflection of God) and all people are diminished.

It also commits the Uniting Church to hold the Government accountable for its policies, stating:

We urge the Australian Government to fulfil its responsibilities under the human rights covenants, conventions and treaties that Australia has ratified or signed, by upholding international standards in effecting social and legislative change.

In the context of public policy and international humanitarian affairs, we can contribute by supporting the development of policy and legislation which upholds the rights of all people to participate in the community and public life, be treated with respect and accorded dignity without discrimination. Support for an instrument that seeks to ratify our Australia’s international human rights commitments and protect human rights in Australia is entirely consistent with the Uniting Church’s strong commitment to human rights.

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The Uniting Church’s commitment to an Australian human rights act

In March 2008, the Assembly Standing Committee resolved to support a national human rights charter or act for Australia. It resolved to:

communicate to the Commonwealth Government its support for a national human rights charter that is born from widespread and effective community and stakeholder consultation;

call on the Australian Government to develop a national human rights charter which

a) implements Australia’s commitment to human rights outlined in
• the Universal Declaration of Human Rights,
• the International Covenant on Economic, Social and Cultural Rights, and
• the International Covenant on Civil and Political Rights;

b) holds public institutions and officials accountable for upholding and promoting human rights in the creation and administration of public policy and practice;

c) takes account of Indigenous Australians as the first peoples of this land and the long history of rights being denied to them; and

d) is supported and policed by properly funded, independent mechanisms; and

affirm support for relevant campaigns for a national human rights charter with these aims.

A further reason for the Uniting Church to support human rights legislation in principle lies in the Church’s special commitment to its Indigenous members and to the rights of all Indigenous Australians. At its 7th National Assembly, the Uniting Church formally entered into a relationship of Covenant with its Indigenous members, recognising and repenting for the Church’s complicity in the injustices perpetrated on Australia’s Indigenous community, and pledging to move forward with a shared future. The President’s statement to the Uniting Aboriginal and Islander Christian Congress (“Congress”) affirms:

We seek to journey together in the true spirit of Christ as we discover what it means to be bound to one another in a covenant. Christ has bound us each to himself, giving himself for us, and he has bound us to each other with his commandment ‘Love one another as I have loved you’.

It is our desire to work in solidarity with the Uniting Aboriginal and Islander Christian Congress for the advancement of God’s kingdom of justice and righteousness in this land, and we reaffirm the commitment made at the 1985 Assembly to do so. We want to bring discrimination to an end, so that your people are no longer gaoled in disproportionate numbers, and so that equal housing, health, education and employment opportunities are available for your people as for ours. To that end we commit ourselves to work with you towards national and state policy changes. We commit ourselves to build understanding between your people and ours in every locality, and to build relationships which respect the right of your people to self determination in the church and in the wider society.

Congress’ generous response to this statement, among other messages, called upon the broader Church to take up the mission of reconciliation:

Because it is pleasing to God to love one another, and it is our commitment to do so, we invite you on behalf of Congress members to develop a new relationship by entering into the struggle of those issues that presently are the cause of continuing injustice resulting in broken relationships.

The ongoing and continually renewing nature of the Covenant, and its clear missional grounding in the life of the nation as well as the life of the Church, calls the Uniting Church to continually act against the systems and structures that discriminate against and oppress our Indigenous people.

We were recently reminded of the importance of this advocacy with the Federal Government’s decision to take control of Indigenous communities in the Northern Territory. This policy was developed without community consultation, and in order to implement it the Government chose to over-ride the Racail Discrimination Act (which implements Australia’s international obligations under the Convention on the Elimination of All Forms of Racial Discrimination) and the Native Title Act.

The National Assembly of the Church, along with many other concerned community organisations and the Racial Discrimination Commissioner, spoke out against these measures. The National Assembly made a joint statement with the Congress:

This is some of the most significant legislation in the history of our nation, over-riding aspects of the Race Discrimination and Native Title acts. It is with disbelief that we note that it merited only a one-day Senate hearing, which did not consult with some of the key
stakeholders in the plan.

Agencies and members of the Uniting Church who work and live in remote communities that will be affected by these changes have expressed their dismay at the way this process has been undertaken, and are fearful of the possible consequences of legislation on the permit system and land tenure.

The Northern Synod of the Uniting Church, whose members are strongly affected by the changes, later made a statement which reflects the confusion and distress suffered by many in the Northern Territory as a result of the lack of consultation and disregard for the needs of those involved:

At our annual Synod meeting held 30 September to 3rd October 2007 we heard many cries for help and expressions of concern with comments such as:
• “Is there a war between black and white people?” (a child from Galiwin’ku.)
• “We heard they are coming to take away our children.” (a woman from Ramingining)
• “There are so many voices; it is all crazy, leaving us with a feeling of hopelessness.” (a man from Galiwin’ku).

Supporting and advocating the ratification of Australia’s international human rights obligations, whether in constitutional or legislative form, is one way of furthering the Church’s special covenant with its Indigenous members. With the additional protection of a properly implemented human rights act, the Government may not have been able to pass this legislation in such a short space of time, without consultation, overriding civil and political rights and particularly the special rights that we as a nation have
accorded our Indigenous citizens.

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The state of human rights in Australia

Australia is a signatory to many United Nations human rights treaties and conventions, such as the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights.

For the rights contained in these instruments (such as freedom from hunger, the right to education and freedom from torture and slavery) to be protected domestically in Australia, they must be enshrined in domestic law. Unless this is the case, Australian governments are under no legal obligation to comply with them. Governments are therefore able, as we have seen in recent times, to implement laws and policies which infringe on fundamental rights and freedoms.

It is a common belief that in Australia we already have protection for all the rights we call “human rights”. This is not the case. Australia is the only democratic, developed nation without legislative or constitutional protection for the basic rights and freedoms to which all people are entitled.
Australian law currently provides only an ad hoc and incomplete patchwork of rights protection. The Constitution contains only a few fundamental rights protections such as the right to trial by jury, and at the state and Federal level there is some legal protection for individual rights, such as anti-discrimination protections.

One of the idiosyncrasies of the Australian system is that much is left to convention – we rely very strongly on the goodwill and commonsense of our politicians, the strength of parliamentary democratic traditions and the influence of community standards to sense the smooth running of our parliament and nation.

The Westminster system of two houses of parliament has traditionally given rise to lengthy debate around legislation affecting human rights, and ensured that the government of the day does not neglect its human rights obligations.

In recent times, however, it has become clear that these checks and balances are increasingly limited in their ability to ensure the protection of human rights. The Uniting Church has raised concerns around the content and intent of legislation passed through parliament quickly and without
sufficient scrutiny. Examples include:
• anti-terrorism legislation which severely curtailed the right to a fair trial and freedom of speech and association;
• the prolonged, indefinite detention of asylum seekers, including children;
• the WorkChoices legislation, which was allocated a formal inquiry of just one week and had far-reaching effects on the minimum basic working conditions of more than three-quarters of the workforce; and
• the Northern Territory Indigenous Intervention, which was introduced without consultation with the communities affected.

In addition, there have at many times been vast differences between Australia’s promotion of human rights on the international stage and its human rights record at home.Australian governments have been criticised, for example, for the mistreatment of children in detention centres, the discrimination of same-sex partnerships and the disadvantage felt by Indigenous Australians in the areas of health, education, employment and imprisonment.

All of these initiatives have had implications for our international human rights obligations, and for the wellbeing of people and communities. As such the Uniting Church has been vocal in opposition to these and other initiatives that have been undertaken without proper consultation with expert and community voice, and decisions that have been made without due respect to human rights.

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Why a national human rights act?

A human rights act, based on those rights described in the International Bill of Human Rights (see below), would clearly set out the rights of all Australians, and serve as a checklist for government in formulating their policies and activities and for the courts when examining laws. Alone it is not the answer to all human rights problems but it has the potential to become an important part of our democratic system.

National legislative bills of rights were introduced into parliament in 1973, 1984, 1985 and 2001, and a constitutional referendum was held on the issues in 1988. None of these initiatives have been successfully implemented. The difficulty experienced in creating a national human rights framework has led in recent times to individual states implementing, or looking to implement, their own human rights legislation. Currently, overarching human rights instruments have been implemented in the ACT and Victoria, and Western Australia and Tasmania have undertaken community consultation activities with a view to introducing legislation.

Despite these state-led advances, the value of a national human rights act cannot be understated. The Australian Constitution allows for laws made in the national parliament to over-ride state legislation when those laws are incompatible. As such, without a national human rights act, protections that are in place at the state level can be overridden by Commonwealth legislation.

A close look at Australia’s democratic system will reveal what is, in fact, the very passive role currently played by citizens in rendering politicians accountable. For most, it involves a ballot box every three or four years. Fewer people are joining political parties, and many people do not have the time or interest to keep abreast of day-to- day political events. The fact is that unless legislation has powerful supporters, involves political or special interests, has grabbed the media’s attention, or looks after popular minority interests, it will often not attract the attention of parliament.

The most marginalised and disadvantaged individuals and groups – children, the homeless, Indigenous people, people with mental illness – have limited power at the ballot box and inadequate resources to advocate for their rights. The ability to vote every three years is not an adequate remedy for a homeless mother of three living in a squat, for instance. Legislation is needed to protect these vulnerable Australians.

A human rights act alone is not a guarantee against human rights abuses. It exists within a country’s system of law and government. Supported by a robust and open political culture and a nation’s capacity to meet the basic demand of its people, a human rights act can make a real difference to the protection of basic freedoms. It can also help answer some of the most important questions that face a society. What sort of nation do we want Australia to be, for example, and on what values should it be based? How do we understand, as individuals and members of communities, our rights and responsibilities to each other?

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How would it work?

National protection for human rights could take a legislative or a constitutional form. Most public debate has focussed on a legislative act, as it is difficult to obtain support for constitutional changes or additions.

A legislative human rights act would require a bill to be introduced and passed through parliament, to be enshrined into law. The Victorian legislation, which was based on successful laws in Britain and New Zealand, is an example of this. The centrepiece of the legislation is the requirement for all laws introduced into Victorian parliament to be accompanied by a statement of compatibility with the rights described in the human rights legislation. Being legislatively enshrined rather than constitutionally enshrined (as in Canada) means that the elected parliament rather than the judiciary will always have the final say.

This model does not give the courts power to override, invalidate or re-make a law made by Parliament. Rather, it enables courts to interpret whether laws are consistent with the act, and requires that any new legislation put before Parliament is assessed as to whether it is compatible with the act. If an inconsistency is found by the courts, this is brought to the attention of the Parliament. The Parliament then has the final say on whether and how to act on this incompatibility.

A legislative act would be an instrument borne of democratic processes: considered and passed by an elected Parliament and subject to the usual parliamentary constraints and applied by the Judiciary. This piece of legislation could be changed by the Parliament at any time. If a national act followed the Victorian model, it would establish a dialogue between the arms of government, ensuring that human rights were taken into account by parliament, the courts and public authorities when developing law and policy and delivering public services.

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Who would benefit from a human rights act?

The Uniting Church supports a human rights act because of the protections it will provide to the most vulnerable, marginalised and disadvantaged in our community. The 2007 report of the Consultation Committee for a proposed West Australian human rights act highlighted the range of human rights issues that concern many Australians. The consultation committee heard people speak of their experiences and those of their families and friends: elderly people in nursing homes suffering infringement of their basic rights; family members of patients in hospitals worried that the rights of their loved ones were not being respected; grandparents concerned about their rights and those of their families in child protection proceedings which affected their grandchildren; ratepayers concerned about the behaviour of their local councils; farmers dealing with corporations; concern about the lack of protection for whistleblowers; many stories of the rights of people with disabilities and those living with mental illness being ignored. The examples are numerous and broad-ranging.

Case study: Human rights and homelessness

People experiencing homelessness face numerous violations of their human rights. As well as breaching the right to adequate housing and to an adequate standard of living, homelessness can restrict many other rights such as the right to vote, to health, to privacy, to liberty and security of the person (personal safety), to social security and to several other rights. These human rights violations are particularly pertinent to the groups of Australians that are significantly and disproportionately affected by homelessness – including Indigenous people, children and young people, people with mental illness and refugees and asylum seekers.

see Human Rights and Equal Opportunity Commission (2008), ‘Homelessness is a Human Rights Issue’, available: http://www.hreoc.gov.au/word/human_rights/ Homelessness_2008.doc

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Rights and responsibilities: caring for each other in community

Christians believe that we are called to participate in God’s mission for justice, peace and reconciliation in the world. As significant institutions within civil society, churches can usefully advocate for public policy which enables social justice and seeks to overcome poverty and violence. Christian churches can support the development of policy and legislation which upholds the rights of all people to participate in public life, be treated with respect and accorded dignity without discrimination. Human rights as they are expressed by the United Nations conventions and treaties express exactly such values. Australia, as
a signatory to these conventions and treaties, has an obligation to ensure that human rights are upheld in Australian law.

A common misperception about human rights is that they elevate the status of the individual and diminish the importance of community. In fact, the international human rights system developed in a context of international co-operation which sought to ensure the development of a global community where nations would be accountable to each other for upholding the dignity of their citizens and relating to each other with respect for purpose of building a peaceful world.

Most rights are not absolute and depend on the responsibility of everyone in society to respect one another’s freedoms – to treat their neighbour as they themselves would wish to be treated. The freedom of expression, for example, is limited by privacy rights and obligations not to incite racial hatred or violence. More generally, Article 5 of the ICCPR limits the exercise of all rights contained in the Covenant by reference to the rights and freedoms of others. A human rights act will remind all of us that in a democratic and inclusive society, human rights entail particular responsibilities – to respect the rights of others, to observe the law, and to live our lives mindful of our common humanity.

The Uniting Church’s support for a human rights act is based not on any idea about the rights of individuals separate from our responsibilities, but rather how we, as individuals and as a society, develop systems and structures that support our responsibilities to care for the most marginalised in our society. In this endeavour, ‘human rights’ is one (but not the only) important tool at our disposal.

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Which rights would be included?

The inclusion of civil and political rights in a human rights act is in line with the human rights instruments of other nations. The Uniting Church believes, however, that an Australian human rights act must also include protections for economic, social and cultural rights, so that the full range of rights, often referred to together as the International Bill of Human Rights, is protected in Australia.

The International Covenant on Civil and Political Rights includes, for example:
• the right to life
• freedom from torture, cruel, inhuman or degrading treatment
• freedom from slavery
• right to liberty and security of person (freedom from arbitrary arrest or detention)
• right to challenge detention in a court (habeas corpus)
• right to a fair trial and equality before the law and protection of the law
• freedom of thought, conscience and religion
• the right to family and the rights of children to a name and nationality
• the right to peaceful assembly and freedom of association
• right to participate in public affairs and to vote

The International Covenant on Economic, Social and Cultural Rights includes, for example:
• right to work, fair wages, equal wages, safe working conditions and rest in work
• right to form and join trade unions
• adequate standard of living including food, clothing and housing freedom from hunger
• highest attainable standard of physical and mental health
• right to education
• right to take part in cultural life, enjoy the benefits of scientifi progress and its applications

The Acts in place in the ACT and Victoria centre on civil and political rights, although both states include protection for minority and Aboriginal cultural rights and the Victorian Act also contains some protection for property rights. Economic, social and cultural rights were omitted from the ACT and Victorian human rights instruments largely because of the concern that their inclusion would encroach too much upon Parliament’s ability to control spending and resource allocation and would result in a large amount of litigation cases in court.

The Uniting Church strongly supports the inclusion of economic, social and cultural rights in an Australian human rights act as these rights cover areas of life that are fundamental and essential for people to live a dignified life. Their inclusion is necessary in order for a Human Rights Act to have meaning in the community. A Human Rights Act can be modeled to ensure that the courts can not take power away from the Parliament, strike down legislation or allocate resources. Furthermore, the ACT Human Rights Act has not caused a flood of litigation. After one year in operation, the Act had been cited in 10 judgements, suggesting that the courts were careful in their application of the legislation.

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Consultation with the Australian community

On 10 December 2008, the Australian Attorney General, Robert McClelland launched the National Human Rights Consultation. This consultation will seek the community’s views on human rights in Australia, asking three key questions:
• Which human rights and responsibilities should be protected and promoted?
• Are human rights sufficiently protected and promoted?
• How could Australia better protect and promote human rights?

For human rights protections to be effective in Australia, it is important that people have a reasonable understanding and knowledge about human rights. It is also important that human rights legislation re! ects the values and expectations that resonate within the community. For this reason, the Uniting Church supports an act born from widespread and effective community and stakeholder consultation. It is important that as many individuals, community groups and faith-based organisations as possible are active participants in this process.

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For more information

The National Human Rights Consultation
http://www.humanrightsconsultation.gov.au/

The Australian Human Rights Commission, ‘Let’s talk about rights’ page http://www.humanrights.gov.au/human_rights/charter_of_rights/

The Australian Human Rights Group
http://www.humanrightsact.com.au/ahrg/

A Human Rights Act for Australia campaign
http://www.humanrightsact.com.au/2008/

Human Rights Law Resource Centre
http://www.hrlrc.org.au/