The absence of a national human rights law in Australia permits the mistreatment of people, writes George Williams.

Australia is the only democratic nation in the world without a national human rights law like a charter or bill of rights.

This is reflected in the absence of human rights principles in political debate and the legal system, and in the lack of protection for the vulnerable and disadvantaged in the community.

Australian law still routinely permits the mistreatment of people in ways that are unjust and infringe upon the dignity, respect and freedom to which all human beings are entitled. We should do better.

A large part of the problem (in the absence of a charter or bill of rights) lies in human rights being dependent on the wisdom and good sense of our elected representatives. This can be a frail shield when one party controls both houses of the Federal Parliament, or at a time of fear - like after 11 September. Without the checks and balances of a national human rights law, freedoms can be ignored and taken away too easily.

Unthinkable cruelty

During the past decade, the Australian Government was routinely locking up children in conditions that caused many of them to become mentally ill. This now no longer happens and it seems unthinkable that this practice could have occurred, yet it did. The problem was the law, which said that the detention of people seeking asylum in Australia was mandatory. This law was applied without exception, even to unaccompanied children already suffering trauma.

The High Court of Australia ruled on the detention regime three times in 2004. In the case of Woolley, four children held in the Baxter detention centre sought an order for their release, arguing that the mandatory detention regime did not apply to children. Their argument was unanimously rejected. In the case of Behrooz, the Court went further in finding that detention was lawful even where the conditions were harsh or inhumane.

The final High Court decision of Al-Kateb added that the detention could be indefinite.

In nations like the United Kingdom and the United States, judges have found that the law does not permit indefinite detention. The Australian High Court found, however, that unlimited detention is permitted under our legal system. Justice Michael McHugh conceded that the situation was "tragic", but found, that in the absence of a bill of rights "the justice or wisdom of the course taken by the parliament is not examinable in this or any other domestic court".

Spelling it out

"It is not for courts ... to determine whether the course taken by Parliament is unjust or contrary to basic human rights." With these words, Justice McHugh spelt out what it means for Australia not to have a charter or bill of rights. Without this, there may be no check on laws that violate even the most basic of human rights.

Australian law is at odds with the fundamental rights of humankind set down in the 1948 Universal Declaration of Human Rights. Other conventions have since set out in more detail the basic rights of all people. The two most important are the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights.

Nations around the world have brought about a charter or bill of rights based on these instruments. While Australia has ratified both of them, we have not made them part of our legal system. This leaves us in breach of our international obligations.

The best way to bring about an Australian charter of rights would be to pass a new Act through the Federal Parliament to make the covenants part our of law. No change to the Constitution would be required, and there would therefore be no need for a referendum. As an ordinary Act of Parliament, the charter could be changed and improved over time.

The national law should include not only civil and political rights like freedom of speech, but also economic, social and cultural rights like those to health, housing and education.

Australia should not adopt anything like the Bill of Rights of 1791 in the United States Constitution. Instead, we should follow the path of the United Kingdom's 1998 Human Rights Act, which has now been adopted in the Australian Capital Territory's 2004 Human Rights Act and Victoria's 2006 Charter of Human Rights and Responsibilities.

This would mean an Australian charter of rights that provides the leading role to parliament and not to the courts. As an ordinary Act of Parliament, the charter would not transfer sovereignty from parliament to the courts, but heighten human rights concerns within the political process.

Strengthening democracy

The charter would strengthen and broaden the scope of our democratic system by preventing us making bad laws, and could be used to educate, shape attitudes and bring hope and recognition to people who are otherwise powerless.

Such a charter would mark an important shift not only in the law, but in how we approach politics and government. The focus would be on ensuring that basic freedoms and human dignity are taken into account at the earliest stages of the development of law and policy. Human rights would be given a higher status and legitimacy within the media, government and the law. This would strengthen the advocacy efforts of Amnesty International and others that argue for the better protection of human rights.

An Australian charter of human rights would be a powerful new tool in the fight to protect the freedoms, not only of Australia citizens, but of all people who come to our shores.

George Williams is the Anthony Mason Professor and Foundation Director of the Gilbert and Tobin Centre of Public Law at the University of New South Wales. He is an Amnesty International member and the author of A Charter of Rights for Australia (UNSW Press, 2007).