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Human right of hypocrisy


Shane Drumgold

In weighing whether human rights legislation is good or bad, the obvious question is: for whom?

ONE-WAY FLOW: It is ironic that shifting more rights from the victim of a crime to the accused is defined as promoting ...

ONE-WAY FLOW: It is ironic that shifting more rights from the victim of a crime to the accused is defined as promoting human rights. Photo: Greg Newington

This year, modern human rights will celebrate its 65th birthday, and the intellectual giants who have monopolised the discussion, such as Geoffrey Robertson and Julian Burnside, will descend from their pedestals and once again extol the virtues of human rights legislation, telling us how it has made bungling bureaucrats bungle less, and how the lot of the refugee in Australia is so appalling simply because we don't have federal human rights laws.

There will no doubt be a batch of new books, lectures and awards as they tell us how much money they haven't made from human rights, before polarising the discussion into the progressive, fair-minded people in favour and the despots who see its shortcomings. However, in grappling with the question of whether human rights legislation is good or bad, they don't seem to ask the obvious question: for whom?

Section 16 of the ACT's Human Rights Act protects freedom of expression, so before their noise drowns out the mutterings of the ordinary people, I would like to express the views of one ordinary lawyer who has been picking up the pieces left after crime since before the ACT introduced the legislation almost nine years ago.

To kick us off, picture this: the date is December 10, 1948, and you are standing in the beautiful Palais de Chaillot in Paris. The world leaders gathered are still shocked at how a handful of homicidal maniacs could engineer the mustering of 6 million humans from one small subset of the larger white race from the four corners of Europe, then systematically murder them, so they have tried to codify humanity.

The chairwoman of the United Nations Commission on Human Rights, Eleanor Roosevelt, hands down the Universal Declaration of Human Rights to the president of the United Nations General Assembly, Australian politician and former High Court judge Dr H.V. Evatt. It proudly claimed to reflect the rights to which all humans were inherently entitled, and after a universal dose of backslapping and fine French wine, the key players returned to their respective countries, satisfied that the human rights they enjoyed were now not just international but universal (hubris that would become synonymous with human rights).

In Roosevelt's United States, those rights included not being forced to sit in a restaurant or bus next to a black person. In Evatt's home, where the White Australia policy was entering its sixth decade, anyone not a white Anglo-Saxon was being refused entry and thousands of Aboriginal children had been forcibly removed, and thousands more would be removed from their parents for three decades to come.

In 1966, the declaration evolved into the International Covenant on Civil and Political Rights. This document was primarily concerned with putting the declaration into effect and had a clause asking all governments to adopt the covenant domestically. It formed the skeleton of domestic human rights legislation around the world, including that introduced in the ACT in 2004 and Victoria in 2006.

In the 2011 High Court case of Momcilovic v The Queen, Justice Dyson Heydon suggested human rights legislation only provided entertainment for bored judges, but warned it was like an addictive drug that required constantly increasing the strength of the dose. He also warned that the ability to cherry-pick rights and who to give them to ensured inconsistency - and there is much force in what he said.

Section 8(2) of the ACT act proudly proclaims: ''Everyone has the right to enjoy his or her human rights without distinction or discrimination of any kind.''

Section 24 of the Victorian legislation gives ''a person charged with a criminal offence'' a right to a fair hearing. The corresponding provision in the ACT (s21) gives the same right to ''everyone'', presumably including victims.

Notwithstanding this grandiose drafting, people accused of crimes are much more likely to enjoy the benefits of the human rights legislation than their victims, or potential victims.

Human rights legislation has been regularly used to overcome statutory presumptions against bail. An offender's ability to manipulate the legal system is greater. In 2011, ACT Human Rights Commissioner Helen Watchirs warned that a push to force defence lawyers to outline their case before going to trial, so as to reduce unnecessary adjournments on the day of trial, could ''threaten accused people's right to a fair hearing''. It seems an accused rapist is more human than their victim, who has steeled themselves psychologically for up to two years to give evidence against the person they most fear, only to turn up and have the trial vacated for another two years because the accused discloses their wish to challenge portions of the evidence for the first time on the morning of the trial, as they are entitled to do at present.

The Victorian legislation has been used to ensure offenders are given the greatest possible chance of acquittal at trial by doing everything from limiting the number of corrections officers in court to dismantling and rearranging courtroom furniture. Even if convicted, the prison experience is much less of a deterrent today, as regular human rights reviews try to make it as close to not being in prison as possible.

It is difficult, however, to see what human rights legislation has done for the child cowering in their bedroom while his drunken father beats his mother again while on human rights-compliant bail for beating his mother last time. Or the struggling family to have their home broken into and their only TV stolen and pawned for the day's heroin hit. Or the teenager who worked double shifts for two years to save for a car, only to have it stolen a week after he bought it for a one-hour joyride then burnt out because the offender couldn't be bothered wiping their fingerprints off.

Human rights apply to victims and potential victims in Australia today, in the same way they applied to black people in Roosevelt's US or anyone not an Anglo-Saxon in Evatt's Australia.

There is no corresponding human obligation to balance the offender's human rights. There are no limits on how many times they can be used, or limits to the circumstances. It is a one-way tap that is turned on and off according to the values of the judicial officer, no doubt influenced by the quality and cost of the arguments being presented before them.

In practice, the human victim doesn't feature in the human rights equation. Victims of crime are usually selected because they are vulnerable. How, then, can shifting more rights from the victim to the accused be defined as promoting human rights?

>> Shane Drumgold is a senior advocate with the ACT Office of the Director of Public Prosecutions. These are his personal views.


  • And I would add that citizens are largely kept in the dark as to crime and sentencing and therefore we are unable to monitor the situation and bring any concerns to the attention of our elected representatives. Governments should publish on the Internet details of the crime, the convicted offender, the sentence and parole, etc.

    Look at the outrage over the alleged rape and murder of the girl in India and yet female tourists were allegedly raped near Alice Springs some time ago. What happened to the offenders in that case? We never hear of the outcome and therefore we don't know if our criminal justice system is working as we would want.

    Paul Neri
    Date and time
    January 09, 2013, 12:06PM
    • Drumgold is conflating two distinct choices here and using the undesirable consequences of one to undermine the legitimacy of the other.

      Human rights is an unproblematic concept. It means a right that we have by virtue of being human. The key point being that you don't earn it - otherwise it would be a reward - and you can't have it bestowed on you - otherwise it would be a privilege. Conversely you cannot loose it. A good one to start with would be the right not to be deliberately killed. If that's a right - then the death penalty is a violation of it - as might be involuntary conscription.

      A civil society can choose to accept and define human rights - nationally or in concert with other nations.

      But the definition and enumeration of rights is a different issues. That human rights are poorly selected and articulated does not show that there is no value or benefit in human rights per se.

      Drumgold is making a classic let's-toss-the-baby-out-with-the-bathwater argument.

      A human right is a line in the sand that say to society you have this much power over the individual and no more. It acknowledges the fundamental law of violence - it is perpetrated by the big upon the little, the many upon the few, and the powerful upon the weak.

      Date and time
      January 09, 2013, 1:20PM
      • To state that this article aims at undermining the fundamental concept of human rights is a bit of a Pindaric flight and does not look at what it actually points out: every legal or ideological framework has the potential of being overstretched and reach points where the central object of the original ideal is defied, and this is my understanding of what the article is about.

        Under scrutiny is not a binomial theorem on safeguarding the fundamental rights of the individual Vs the State, but one about the necessity to revise the practical implementation of the core principles of the law and the interests it seeks to protect whereby the rights of the victims are no longer the weakest variable of the equation, as it often happens in reality.

        And frankly to define ‘human rights’ as “an unproblematic concept” is quite an oversimplification.

        Date and time
        January 09, 2013, 2:37PM
        • Prosecutor complains law stops him getting prosecutions. Well I'm shocked.

          Drumgold makes a couple of good points but in the end the difficulties he encounters do not make human rights legislation any less essential.

          In answer to the question, 'In weighing whether human rights legislation is good or bad, the obvious question is: for whom?', the answer is 'everyone', because without it society takes a backward step.

          Date and time
          January 09, 2013, 2:37PM
          • I think the example of "thousands of Aboriginal children had been forcibly removed" is a prime examples of conflicting rights. Whilst it undoubtbly true that SOME Aboriginal children were forcibly removed ONLY because they were Aboriginal, as the vast majority of studies into the records of the children forcibly removed at the time showed, most were removed BECAUSE they were exposed to a violent drunken father, were neglected, were not attending school, etc etc etc.

            In otherwords, their human rights were being abused.

            The result? their human rights were further violated in an attempt to prevent on-going violations of other human rights. As a number of commentators - both indigenous and non-indigenous have noted over the years, many (but not all) of the stolen generation would, if the situation were the same, have been today and placed into DOC/protective care.

            I think Drumgold may have been trying to use this emotive example to highlight his point - and it is a good one - but I think it is important to remember that rights and obligations must be balanced. In the case of the stolen generation, there were many factors that were balanced, sometimes with good results, some with bad, some with good intentions with no consideration of race (save the child) others blatantly racist (they are aboriginal, lets remove them).

            I wonder how long it will be until an Abroginal plaintiff launches litigation on the basis of damage they suffered from abuse that was known to DOCS/child protection and were NOT removed BECAUSE they were aboriginal and BECAUSE of the fear of violating their human rights (in relation to having and being connected with family etc).

            In short: yes, rights cut both ways. Deal with it.

            Date and time
            January 09, 2013, 3:53PM
            • I get worried when I read about a Magistrate who is "grieved" (Magistrate's words) that the Magistrate must, due to the absence of other sentencing options, send a mentally impaired offender, albeit one who stole cars and drove them dangerously, to prison.

              Paul Neri
              Date and time
              January 09, 2013, 5:29PM
              Comments are now closed

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