A suicide of a fifteen year old Aboriginal boy in gaol in 2000 drew national attention to the mandatory sentencing regime for minor property crimes in the Northern Territory of Australia. Many prominent Australians objected to the regime for being racist in its impact as it focussed on offences that disadvantaged Aborigines were likely to commit. Appeal Court judges and a former Liberal prime minister were among those who condemned the law. The United Nations Committee on the Elimination of Racial Discrimination found that the law breached Australia’s international treaty obligations to protect human rights. However, a legal challenge against the mandatory sentencing regime failed, and in the absence of a Bill of Rights there was no law or rights principle that could be used to defeat this law. In the end its removal depended on the election of a different government. This book arises from concern at situations such as this.
Australia is the only western nation not to have a Bill of Rights. While it is a signature to the UN Declaration on Human Rights many of these rights cannot be enforced in Australian courts. Williams, a Professor of Law, argues that there is a particularly urgent need for an Australian Bill of Rights in the current climate of fear of terrorism which puts pressure on governments to create new controls.
Through clear examples of Australian controversies and cases such as the mandatory sentencing one described above this small 95 page book demonstrates forcefully how Australia’s legal system has failed, and continues to fail, to protect a number of human rights. Williams goes on to examine current rights under the law. Starting with the Constitution, he details its strengths but also its gaps and flaws, including difficulties with Section 41 which grants the right to vote in federal elections and problems with the ‘races power’ of Section 51.
He acknowledges that individual Human Rights and Anti-Discrimination Acts do provide important protection for some rights. However, their strengths are diminished by the fact that they are subject to repeal or amendment. And the common law as an instrument for protecting human rights? Judges are reluctant to be the ones to develop the common law to recognize basic human rights, and, where a statute and common law conflict, the statute overrides the common law. International Law provides an avenue for drawing attention to breaches of human rights. However, such rights can only be protected by relevant laws in Australia.
Williams describes the various failed attempts in Australia to provide a broad platform of human rights legislation. He does detail the one success - the historic Human Rights Bill of the Australian Capital Territory passed in 2004. He outlines a way forward in terms of the process needed to achieve a bill of rights and the type of bill that is needed. Finally, he stresses that the main impact of a Human Rights Bill comes from its symbolic force in promoting tolerance of cultural diversity and shaping attitudes towards people who would otherwise be powerless.