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.