Human rights for Australia

Asylum seekers
George Williams

Australia is now the only democratic nation in the world without a national charter or bill of rights. It is long past time that we redressed this and modernised our system of government by introducing an Australia-wide human rights law. We should provide the best possible protection for vulnerable groups like children and the elderly and for important values like freedom of speech.

Until recently, no Australian government had achieved a charter of rights. The first, failed attempt was not by a Labor government but by the Nicklin Country Party government in Queensland in 1959. The breakthroughs came in the Australian Capital Territory with the Human Rights Act 2004 and Victoria with its Charter of Human Rights and Responsibilities Act 2006. Other States may also be on the way, including Tasmania and Western Australia where recent inquiries have recommended change.

But is there a need for national reform? After all, there is rightly much to be proud of in our political freedoms and democratic institutions. The problem is that while our system of government generally works well for most Australians there are too many examples of it failing to protect the rights of the most vulnerable and disadvantaged in the community.

We possess problems of law and accountability that range from restrictions on freedom of speech under sedition law to the removal of Aboriginal people as part of the Stolen Generations to the treatment of people with mental illness. Despite the many good things about our democracy, Australian law still routinely permits the mistreatment of people in ways that are unjust and infringe the dignity, respect and freedom to which all human beings are entitled. We should aspire to do better.

A large part of the problem lies in how human rights in Australia are uniquely dependent on the wisdom and good sense of our elected representatives. This can be an especially frail shield when any one party controls both houses of the federal or any other parliament. Without a charter of rights, freedoms can be ignored or taken away too easily.

As Australians we like to assume that we have our rights, but as a matter of law we do so for only so long as they have not been taken away. While the legal system has many checks and balances to temper public power, we have no law that ensures respect for our basic freedoms.

One example of the problem from recent years is how Australia locked up children in conditions that caused many of them to become mentally ill. It seems unthinkable that this could have occurred, yet it did.

The problem was the law, which said that the detention of people seeking asylum in Australia was mandatory. That law was applied without exception, even to unaccompanied children already suffering trauma.

One of these children was five-year-old Shayan, who arrived in Australia in March 2000. Along with other members of his family he was taken to the Woomera detention centre, a facility ringed by desert in South Australia. While in detention, Shayan witnessed hunger strikes and riots, saw authorities responding with tear gas and water cannons, and watched as adult detainees harmed themselves.

By December that year, the detention centre's medical records reveal that Shayan was experiencing nightmares, sleep disturbance, bed wetting and anxiety. He would wake in the night, gripping his chest and saying, 'They are going to kill us.' He also drew pictures of fences containing himself and his family.

Three times during that year the detention centre managers strongly recommended to the government that Shayan be moved from Woomera. Despite further recommendations and psychological assessments reporting high levels of anxiety and distress, it was several months before he and his family were moved to Villawood detention centre in Sydney.

At this time, Shayan was diagnosed with post-traumatic stress disorder. During the next few months he was admitted to hospital eight times for acute trauma and, because he refused to drink, dehydration. He also became more withdrawn.

Medical staff consistently recommended that he should be removed from detention and drew a direct link between Shayan's trauma and his experiences in detention. However, it was not until August 2001 that the government transferred him into foster care. In doing so, he was separated from his parents and sister until they were released in January 2002.

Shayan was one child among many. The statistics make for grim reading. The Human Rights and Equal Opportunity Commission found that the number of children in immigration detention peaked at 1,923 in 2000-01. By the end of 2003, a child placed in detention was kept there for an average of one year, eight months and eleven days.

Some children were detained for more than three years. Almost all of the detained children were found to be refugees and so were eventually released into the community.

The detention of children like Shayan occurred under an Australian law introduced in 1992 by the Keating government and continued after John Howard became Prime Minister. In other nations, it would have been counter-balanced by law, called a bill of rights, charter of rights or human rights act, setting out and protecting people's fundamental human rights.

In Shayan's case, this might have included the rights of children and more general rights such as freedom from arbitrary detention. By contrast, the Australian immigration law was unchecked. In fact, when it was challenged in the courts it was held to be legally unobjectionable.

The High Court of Australia ruled on the detention of children in 2004. Held in the Baxter detention centre near Port Augusta in South Australia, four children sought a court order for their release, arguing that the mandatory detention regime in the Migration Act did not apply to children. This was unanimously rejected on the basis that the Act was expressed in clear terms, with no exceptions made for children.

According to Chief Justice Murray Gleeson: 'It is hardly likely that parliament overlooked the fact that some of the persons covered ... would be children. Human reproduction, and the existence of families, cannot have escaped notice.'

It was also argued on behalf of the children that the law breached the Australian Constitution. This too was unanimously rejected on the basis that the Constitution does not guarantee their freedom from involuntary detention.

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