A Charter of Rights for Australia

By Daniel Reynolds and George Williams

Australia does not have a bill or charter of rights, which means there is no comprehensive law that enshrines human rights in Australia – even though these laws are standard in the rest of the developed world. So what does this mean for the rights of Australian citizens? In this fully revised fourth edition of A Charter of Rights for Australia, George Williams and Daniel Reynolds show that human rights are not adequately protected in Australia, contrary to what many of us think. Using some pressing examples, they demonstrate how the rights of people at the margins of our society are violated in often shocking ways. Several states and territories have adopted their own charters of rights, or have a charter well underway. This book's argument that the time has come to adopt a charter at the federal level is more urgent than ever.

• Language: English
• Publisher: NewSouth
• Release date: Sep 13, 2017
• ISBN: 9781742242828

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GEORGE WILLIAMS AO is the Dean, the Anthony Mason Professor, and a Scientia Professor at the Faculty of Law, University of New South Wales. He has written and edited 35 books, including Australian Constitutional Law and Theory, The Oxford Companion to the High Court of Australia and Human Rights under the Australian Constitution. He has appeared as a barrister in the High Court in many cases over the past two decades, including on freedom of speech, freedom from racial discrimination and the rule of law. He is a columnist for the Sydney Morning Herald.

DANIEL REYNOLDS is an Associate to a Justice of the High Court of Australia and the author of the book Leading Cases in Australian Law, as well as book chapters and articles in law journals and the mainstream media. He has been a researcher at the Gilbert + Tobin Centre of Public Law at the University of New South Wales since 2014 and a graduate lawyer at Herbert Smith Freehills.

A UNSW Press book

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University of New South Wales Press Ltd

University of New South Wales

Sydney NSW 2052

AUSTRALIA

newsouthpublishing.com

© George Williams and Daniel Reynolds 2017

Fourth edition published 2017. Third edition published 2007.

Second edition published 2004. First edition published 1999.

10 9 8 7 6 5 4 3 2 1

This book is copyright. Apart from any fair dealing for the purpose of private study, research, criticism or review, as permitted under the Copyright Act, no part of this book may be reproduced by any process without written permission. Inquiries should be addressed to the publisher.

National Library of Australia

Cataloguing-in-Publication entry

Creator: Williams, George, 1969– author.

Title: A charter of rights for Australia / George Williams and Daniel Reynolds.

Edition: 4th edition

ISBN: 9781742235431 (paperback)

9781742242828 (ebook)

9781742248301 (ePDF)

Notes: Includes bibliographical references and index.

Subjects: Human rights – Australia.

Civil rights – Australia.

Law reform – Australia.

Other Creators/Contributors: Reynolds, Daniel, author.

Design Josephine Pajor-Markus

Cover design Alissa Dinallo

Printer Griffin Press

All reasonable efforts were taken to obtain permission to use copyright material reproduced in this book, but in some cases copyright could not be traced. The author welcomes information in this regard.

This book is printed on paper using fibre supplied from plantation or sustainably managed forests.

CONTENTS

Preface

1 | An absence of human rights

2 | Australia’s human rights record

3 | Our rights under the law

4 | Why doesn’t Australia have a charter of rights?

5 | Is Australia’s new human rights framework a success?

6 | Charters of rights in the states and territories

7 | An Australian charter of human rights and responsibilities

Appendix: Arguments for and against a charter of rights

Bibliography

Index

PREFACE

The previous edition of this book was written by George Williams ten years ago. Like the two before it, that edition argued for a pragmatic and incremental approach by which parliaments could better protect the human rights of Australians. It said that legislation should be passed to bring about a national charter of rights. The new law would for the first time set out the human rights that Australians possess, and create safeguards to protect them.

There has been a great deal of activity in the decade since. At the federal level, a National Human Rights Consultation took place in 2009 in which the vast majority of those surveyed – tens of thousands of Australians – supported the idea of a charter of rights. However, that proposal was rejected by the Labor Government, and a weaker model was passed instead. More recently, Queensland has held its own public inquiry into human rights protection, which was followed by an announcement in late 2016 that it would adopt a charter of rights. And, all the while, the two jurisdictions that already have charters of rights – Victoria and the ACT – have continued to show the rest of the country how a charter can work in practice to afford dignity and an improved quality of life to everyone. Similar models have also continued to work successfully in New Zealand and the United Kingdom.

Despite these developments, much of the news in the past decade has been discouraging. Violations of human rights still occur all too often in our society, affecting in particular the vulnerable and the disadvantaged. Many examples are provided in this book, and at times these can make for uncomfortable reading. As there are often no legal consequences for such violations outside Victoria and the ACT, governments have been able to turn a blind eye, and indeed have increasingly passed further laws that infringe people’s rights. Some violations are so flagrant that other countries, as well as international bodies like the United Nations, have spoken out in criticism of Australia’s human rights record.

In light of this, the case for national reform is stronger now than ever. Our purpose in writing this book is to make that case as fully and persuasively as we can. It is important that we acknowledge from the outset that, although we have sought to present the facts fairly and accurately, our position is not neutral. Rather, we are advocating a law which we believe will benefit Australians. As with all debates, there are multiple perspectives on whether Australia should adopt a charter of rights, and in the appendix to this book we have set out the main arguments for and against the proposal. These arguments are also addressed throughout the book. As you read through A Charter of Rights for Australia, we encourage you to think through these issues for yourself in light of all the evidence, and then form your own view.

The book follows a simple structure. The overarching argument is that human rights are not adequately protected in Australia, and that a national charter of rights would help to improve this. In Chapters 1 and 2, we use stories, statistics and other examples to show that Australia’s human rights record has major blemishes. For those who are privileged to enjoy most of the benefits our society has to offer – and the authors count themselves in this category – these stories can at times be surprising, even disturbing. Chapter 3 assesses our Constitution and other laws, and shows that our rights are currently subject to very few legal protections. Significantly, and contrary to what is often assumed, Australia has no national charter of rights, making us the only democratic nation in the world without one. Chapter 4 explores why Australia is unique in this regard, examining the history of this nation’s failed attempts to pass such a law.

Chapter 5 brings us to the present day by looking at the recent performance of a new federal law (the ‘weaker model’ that emerged out of the 2009 National Human Rights Consultation), which was passed in 2011 and is the closest thing Australia has to a national charter of rights. As the chapter shows, because it lacks some of the key mechanisms of a charter of rights, this federal law has been a disappointment in failing to provide Australians with meaningful rights protection. Chapter 6 strikes a more positive note, by looking at the two charters of rights Australia does have (the Victorian Charter of Human Rights and Responsibilities and the ACT Human Rights Act). The chapter draws on more than a decade of evidence to show that these two charters have had a positive impact in their respective jurisdictions, and at relatively little cost. Chapter 7 concludes that our federal Parliament should follow the example of these jurisdictions, as well as of other similar models around the world, and adopt a charter of rights for Australia.

This edition of the book is fully revised. It has been significantly extended and includes recent material from our other writings. In completing this new edition, we thank Tom Allchurch for his excellent research support, and Peter Madden, Steve Hutchens and Sophie Carter for their helpful comments on an early draft.

AN ABSENCE OF HUMAN RIGHTS

On 25 July 2016, an episode of the television current affairs program Four Corners sparked national outrage. It was about the conditions experienced by children imprisoned at the Don Dale Youth Detention Centre, a maximum security prison for juvenile offenders in the Northern Territory. It began by showing CCTV footage of a 14-year-old boy named Jake Roper, who had been held in a solitary confinement cell for 23 and a half hours a day for 15 days straight. The cell was a small dark concrete room with no running water, except from the toilet. Jake had managed to break out of his cell and into the common area, where he began pacing the hall, making noise, and looking for ways to get out.

Soon the prison riot squad arrived, including a trained security dog from the adult jail. One officer suggested they let the boy come through: ‘Let the f***er come through because while he’s comin’ through he’ll be off balance. I’ll pulverise, I’ll pulverise the little f***er. Oh s**t, we’re recording hey.’ Another officer asked: ‘Gas the lot of them?’ The Northern Territory Commissioner of Correctional Services, who happened to be on the scene, answered him: ‘Mate, I don’t mind how much chemical you use.’

The guards sprayed tear gas into the common area and into each of the solitary confinement cells, even those where the children had stayed in their cells and done nothing wrong. One boy yelled out that he couldn’t breathe. The guards then entered wearing gas masks, and cuffed all of the boys, took them outside, made them lie on the ground, and sprayed them with a fire hose. To justify these actions, the prison later falsely claimed that six young male prisoners between the ages of 14 and 17 years old had escaped their cells and armed themselves with glass from smashed windows and broken light fittings.

Later that episode, footage was shown of three prison guards entering the cell of a 13-year-old boy, Dylan Voller. The guards pinned Dylan to the floor, stripped him, took away his playing cards, and left him alone, naked and in tears. We were then shown a scene of a prison guard physically assaulting Dylan, kneeing him in the back and hitting him on the head, apparently because Dylan spent too long on the phone. Another scene, this one filmed at a different detention centre in Alice Springs, showed four guards strapping a now 17-year-old Dylan into a mechanical restraint chair, shackling him to the chair by his wrists, waist and ankles, and covering his head with a white bag known as a ‘spit hood’. He was left that way for nearly two hours.

The public response was immediate. Newspapers across the country ran stories denouncing the harsh conditions in which the children were detained. They pointed to the lack of transparency in the system, noting that much of what happens within prison walls is hidden from the public. They questioned whether the pre-employment psychological testing of corrections officers was good enough. The federal government’s response was equally swift. The morning after the episode aired, Prime Minister Malcolm Turnbull announced that a Royal Commission would be established to investigate the detention of children in the Northern Territory.

It would seem reasonable to assume that the treatment of these children at Don Dale was illegal. After all, surely no Australian law could authorise such brutal treatment, including the use of mechanical restraint devices on children. In fact, many of the actions taken at Don Dale, including the use of mechanical restraint devices, were specifically authorised by Northern Territory legislation. In a law passed in April 2016, an earlier provision which allowed prison staff to use ‘handcuffs or a similar device’ was replaced with a new provision allowing any mechanical device to be used, so long as it was pre-approved by the Commissioner of Correctional Services.

In introducing this Bill to the Northern Territory Legislative Assembly, the Minister of Correctional Services, John Elferink, explained that this change was needed so that ‘modern mechanical devices of restraint or advancements in technology will adequately be provided for’. This was necessary, he explained, because ‘in recent years we have seen children in custody being more violent, dangerous and irresponsible than we have seen before’, and ‘the current legislation blatantly exposes members of staff and the public to unacceptable levels of risk’.

However, since the story broke and the broader public learned of the existence of these devices, the Northern Territory Parliament has banned the use of mechanical restraint chairs in youth detention. The Territory’s new Labor Government has also said that it is committed to closing Don Dale and building a new juvenile detention facility, but that this would wait until after the conclusion of the Royal Commission. That commission has since received video evidence of a prison guard entering the room of two boys and asking them for oral sex and, on another occasion, filming a boy using a urinal. While that guard no longer works at Don Dale, children continue to be held there.

It would be easy, even comforting, to treat the Don Dale issue as an isolated incident: a sad and disturbing blight, but one that is thankfully out of the ordinary. And yet, it has proven to be anything but.

In the juvenile detention system alone, other examples have now been found of conditions similar to those endured by Dylan and Jake and countless other children at Don Dale and in Alice Springs. In August 2016, images emerged of a boy serving a sentence at the Cleveland Youth Detention Centre in Townsville. Refusing to have a shower when told by the guards, he was handcuffed, ankle-cuffed, stripped naked and then left alone in isolation for more than an hour. And at the Brisbane Youth Detention Centre in December 2015, an 11-year-old boy was photographed with two black eyes and a bruised jaw. The boy and his family said he was restrained by three guards and ‘bashed’. The authorities claimed that the guards had slipped on a wet surface and fallen on the boy, and then, in a different account, that it was the boy himself who had slipped and fallen on his face. Problems such as these particularly affect Indigenous youth, with a report in February 2017 finding that they are 24 times more likely to be detained than non-Indigenous youth.

More shockingly still, in August 2014, a 22-year-old Indigenous woman named Ms Dhu died while in police custody in Western Australia. She had been arrested for unpaid fines under a controversial law whereby fine defaulters can be jailed as a way to ‘pay off’ their debt. While in custody, Ms Dhu complained a number of times of pain in her chest, and was twice taken to hospital for an assessment, but each time she was sent back to the police station lock-up.

She continued to complain of pain after these two assessments. However, according to the coroner’s report released in December 2016, the majority of the police officers on shift had by this stage formed the view that Ms Dhu was either ‘exaggerating’ or ‘faking it’. On the day of her death, Ms Dhu again asked to be taken to hospital, and was told ‘no’. As the morning went on she began to develop new symptoms, including vomiting, numbness in her lips, her hands turning blue and, eventually, collapsing to the