Friday, 18 January 2019
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Who’s afraid of human rights?

By Emilija Beljic

Human rights form part of the democratic process and serve to strengthen a democracy, demanding transparency in the legislative process and calling into account elected representatives when their political judgement falls short of expectations demanded by their citizens.

The juxtaposition of modern democratic theory on one hand insists that it is for Parliament and Parliament alone to establish the law and thereby the fundamental norms upon which it rests; on the other, it recognises that legal systems must adhere to certain basic norms.

It is within framework of the latter concept that human rights have evolved. Human rights recognise that not only must states not kill, torture or discriminate against their citizens directly; they ought not to kill their citizens via indirect means by, for example, allowing them to starve. They also articulate positive rights such as the right to a standard of adequate living, including the right to food, housing and shelter.

These rights serve to protect people on the fringes when the democratic process neglects them.

There is an expectation that human rights will be progressively realised with societal progress, yet in comparably the strongest economy in the world, we still do not have a federal human rights charter.

As form of recompense, the Attorney-General introduced the Human Rights (Parliamentary Scrutiny) Act 2011 in late 2010. This act requires all new bills to be accompanied by a “Statement of Compatibility with Human Rights”, prepared by the member introducing the bill. The purpose of the statement is to inform parliamentary debate by providing a succinct assessment about the impact of proposed legislation on human rights.

The other element of the Human (Parliamentary Scrutiny) Rights Act is that it establishes the Joint Parliamentary Committee on Human Rights whose function, among other things, is to examine bills and acts for compatibility with human rights. In performing their role, they have the power to call for submissions, examine witnesses, and hold public hearings.

Two groups have called on the committee to establish an inquiry so far. On June 15, the Australian Council of Social Services including the National Council of the St Vincent de Paul Society called for an inquiry into the cuts to parenting payments for sole parents, the majority of whom are women, when their youngest child turns eight years old.

Seventy per cent of single parents are in the poorest 20 per cent of the population and are approximately three times more likely than any other type of family to have both low income and low assets.

These cuts would effectively punish the poorest members of our society already struggling to afford the basics of living on existing social security payments. Among other things, it would breach the principle of non-retrogression – the obligation to progressively realise the right to social security under the International Covenant on Economic, Social and Cultural Rights.

Some days later a second group, the National Congress of Australia’s First People, called on the committee to establish an inquiry into Stronger Futures legislation currently before the Senate.

The notion recently propounded in media that groups seeking to highlight to the committee human rights violations in domestic law are in some way subverting the democratic process is absurd. It is absurd because neither the statement nor the committee’s work is binding on the Parliament or courts (and even if it were, it would form part of a human rights framework established by democratically elected representatives), but more importantly because human rights act as a check and balance in the democratic process.

Equally disingenuous is the idea that some human rights are noble while others are “grubby”. Whether it is the struggles of the Burmese people against the military or Australia’s First People against hundreds of years of historical, structural and social inequality, the human rights struggles are unified by a common thread; to mitigate the harshness of actions taken by the state.

We now have some semblance of a human rights framework at the federal level. Despite its limitations, it allows the Australian people to voice its concerns about violations of human rights in domestic law and to foster informed debate about human rights in Australia between democratically elected representatives and the people.

It allows us to engage with democracy: to hold it to account and to strengthen it. It’s a sign of a robust democracy when civil society is given the opportunity to question draft legislation and to constructively engage with the legislative process. This is something we should value and celebrate, rather than disparage and shrink away from.

This article was first published on The Drum news website Emilija Beljic is the National Research Officer at St Vincent de Paul Society National Council office. Emilija has completed an undergraduate degree in law and is currently undertaking her Master of Laws. Prior to joining the National Council office, she worked at the International Criminal Tribunal for the Former Yugoslavia in the Hague, Netherlands.

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