Recent Events Highlight the Need for a Bill of Rights in Australia

The need for legislation that protects citizens’ basic freedoms at the national level is an ongoing concern for the politically-minded, as at present, Australia is something of an anomaly on the global stage, being the only western democracy without some form of rights bill.

The conversation around an Australian bill of rights – or Human Rights Act – comes to the fore every time the government passes a new rights-eroding piece of national security-counterterrorism legislation. There’s now been around 80 such bills passed at the federal level since 9/11.

And the AFP press raids on ABC and News Corp journalists last June saw the lack of rights protections issue raised once more.

However, right now, the non-existent Australian bill of rights debate has risen again, and this time it’s in regard to a very different set of circumstances: the climate-related bushfire crisis and the potential for further such crises to occur with an escalating impact.

Guaranteed, just not locally

“In the view of Australian Lawyers for Human Rights (ALHR), a charter of rights is imperative as climate change effects continue to impact on human rights,” said Joanna Abraham, the co-chair of the ALHR Human Rights Act Subcommittee.

“As we know, the bushfire crisis has resulted in devastating effects, including loss of life, economic livelihood, housing, health and the ability to attend schooling, with whole communities significantly affected,” she continued.

The lawyer outlines that there’s a direct link between the impact of the bushfires and human rights, and this has involved infringements upon the right to life, housing, health and education. And she expects these concerns to continue to arise around “climate change more broadly” into the future.

Australia has ratified seven core human rights conventions, which means those rights that have been affected are protected under international law. However, this doesn’t carry through domestically and successive governments have done nothing to protect these rights at the national level.

“A charter of rights would work to give full protection to human rights, including those human rights which have been impacted by the recent bushfires and future climate change weather events,” Ms Abraham told Sydney Criminal Lawyers.

States of emergency

A scenario recently raised by those advocating that action be taken on climate is that if the current bushfires crisis is just a taste of things to come, then future intensifying climate hazards may result in government applying more drastic measures, which could impinge upon citizens’ freedoms.

NSW premier Gladys Berejiklian has recently called a state of emergency three times in relation to the fires. And what this meant was Royal Fire Service commissioner Shane Fitzsimmons had extra powers over government and decisions that would usually be in the hands of politicians.

There have also been calls for the prime minister to declare a national emergency, but it’s been pointed out that there are no such mechanisms at the federal level. Although, it’s been suggested that a subsequent inquiry could result in the drafting of legislation to facilitate this in the future.

And it’s the threat of further escalating climate crises that raises questions around what sort of additional measures governments could bring into play and how these could undermine the rights of Australians, especially because most of these aren’t protected under law.

Few rights are absolute

“As natural disasters worsen in future, we will continue to see human rights impacted on an increasingly widespread scale,” Ms Abraham warned. And she suggested that enacting a charter of rights prior to any future climate crises could protect against rights abuses.

The lawyer further explained that as far as human rights go, there are certain absolute rights that “cannot be suspended or restricted”, and then “there are rights which may suspended by governments in circumstances where a state of emergency is declared”.

Article 4 of the International Covenant on Civil and Political Rights (ICCPR) sets out that in the time of a public emergency “which threatens the life of the nation” there are certain measures under the agreement that a state can derogate from, as long as it’s done in a non-prejudicial manner.

This means that some human rights are derogable – or can be suspended – under extreme circumstances, while others remain non-derogable. And these include the right to life, freedom from torture or cruel, inhuman and degrading treatment or punishment and freedom from slavery.

And while the Australian Constitution protects a few citizens’ rights, the majority aren’t safeguarded under local law. So, given this, there are absolutely no guarantees regarding which rights could or couldn’t be suspended in an extreme emergency situation in this country.

“A charter of rights may work to set out which rights are absolute and non-absolute, derogable and non-derogable,” Ms Abraham suggested. And it may “also specify which rights may be limited in certain circumstances and protected from limitation beyond what is permitted in the charter”.

And the distinction between non-derogable rights and absolute rights is that while non-derogable rights can’t be suspended, certain ones can be limited and therefore, are non-absolute. The ICCPR classes the right to life as not absolute, recognising some circumstances justify the taking of life.

That climate class action

Another reason why Australia’s questionable rights protections have come up over recent days has been in relation to the numerous public calls for the Morrison government to be taken to task over its lack of policy on climate via a class action

National Justice Project director George Newhouse pointed out in a recent article in the Conversation that these calls have been spurred by a class action in the Netherlands that saw the court order the government to reduce greenhouse gas emissions.

But, as the human rights lawyer explained, the Dutch case relied upon that nation being a signatory to the European Convention on Human Rights and as Australia doesn’t have similar laws through a bill of rights, a similar action in this country would likely fail.

In relation to this aspect of the rights debate, Ms Abraham adds that “ALHR also argues for a charter of rights to provide an enforcement mechanism for people whose rights have been impacted allowing them to seek remedies”.

And this would include “circumstances where the federal government may face accountability for failing to adequately address climate change at a national level”.