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The term "human rights" is a relatively modern invention. It covers under its umbrella three different types of rights: (i) the fundamental freedoms or classical civil liberties, (ii) ethnic and religious rights and (iii) socio-economic rights. Some constitutions have enumerated the first or the first and the second and attempted to set up judicial enforcement of such rights. The third category has not been stated in a constitution in an enforceable form, but some constitutions refer to them as directive principles of state policy.
Liberal ideas have been influential in the origins and development of the classical civil liberties.
The meanings of the word "liberal" given in the Shorter Oxford Dictionary provide an indication of the context in which the word is used:
"Free from restraint; free in speech or action. . . Free from narrow prejudice; open minded . . .especially open to the reception of new ideas or proposals of reform ... of political opinions: favourable to changes and reforms tending in the direction of democracy".
Freedom is an important value in representative democracies. The idea of the "fundamental freedoms" has been influential in all genuine representative democracies.
Some constitutions contain a statement of human rights professedly in order to safeguard the freedoms of individuals and groups in society. Other constitutions may not, but freedom operates as a politically and socially persuasive doctrine. There is no agreement as to the content of such rights. The more important rights may be said to include the right of each individual to:
2.1.2 Ethnic rights
Nations with multi-linguistic, multi-cultural, multi-racial and multi-religious populations may also attempt to safeguard minorities in their charter of rights. The notion of equality before the law and equal protection of the law underlies the above rights and is generally included in constitutions which have bills of rights though in a particular situation it may be available in conjunction with some other right. The idea of equality before the law implies that persons or groups must not be discriminated against without justification. The words "without justification" are relevant. Discrimination is inevitable in human affairs because of the differences between human beings, accidents (both natural and man induced) and many factors which affect the nurture and development of individuals. These issues are analysed in chapter 9.
Some constitutions also contain what may be called principles of state policy. These by their nature are not justifiable in the courts and are inserted for the guidance of the legislatures and government of the country. Among topics which are placed in this category are the duties of the state: to secure full employment for all people of working age, to provide adequate standards of living and education to all citizens, to rapidly develop the country, to distribute the social product equitably, to eliminate economic and social privilege and disparity, to ensure social security and welfare, to develop the culture and languages of ethnic groups, to protect the environment, to safeguard the independence, sovereignty, unity and territorial integrity of the country and to promote international peace and co-operation.
There is wide disagreement as to the nature of human rights. "Human rights", according to a Marxist legal philosopher,
are neither eternal truths nor supreme values. .. They are not valid everywhere nor for an unlimited time. They are rooted neither in the conscience of the individual nor in a God's plan of creation. They are of earthly origin... a comparatively late product in the history of human society — and their implementation does not lie in everybody's interest. In their essentials, man's interests are not the same everywhere and they cannot even be the same in any particular country under the conditions of the system of private ownership of the means of production. H Klenner, Human Rights: A Battle Cry for Social Change or a Challenge to Philosophy of Law?, at the World Congress on Philosophy of Law and Social Philosophy, Sydney/Canberra, August 1977, pp 8-9.
The analysis made in this chapter refers to three types of rights, (1) the traditional rights primarily involving protection of individuals from government, (2) ethnic and religious rights and (3) social welfare rights. It is important to distinguish between the different historical and conceptual bases of these three categories of rights which are loosely termed "human rights". Such differences between them are often blurred or ignored, with serious consequences for the operation of fundamental freedoms.
Since the second world war, there has been a great emphasis on human rights other than the classical civil liberties: on socio-economic rights, and on the rights of groups or classes or nations. The recognition that the promotion of socio-economic rights, as rights to benefit from the state, stand in great tension with civil liberties may be often deliberately obscured, but it is nevertheless widespread and it is, of course, a correct recognition. The traditional civil liberties, many have correctly recognised, require institutional settings, historical traditions, a sense of community. The socio-economic rights can, in principle, be granted by the state, even by a state which suppresses all non-state organisations and institutions. Very different kinds of societies may be involved....
The attempt to elevate human rights, in any particular formulation, uncritically, as urgent, unhistorical, abstract demands is not only based on intellectual error but is like most propaganda and moral indoctrination inherently unstable and unable to cope with genuine criticism. Human rights can only be understood, and therefore must be taught, in the concrete contexts in which they arise and have to be implemented. This is the social context of concrete history and real politics. There is also, in an important sense, a concrete human context. This is best portrayed by world literature, or at least by the great literature of the world, and not by shallow declarations and proclamations. — E Kamenka What are Rights? at the Conference on "Teaching Human Rights", University of Sydney, November 1978, p 11.
The third category commonly included within the term "human rights", namely "socio-economic rights", raises basic questions regarding the meaning and operation of human rights. The recognition of this category as rights has created certain contradictions within the concept, leading to the weakening of civil liberties. The consequences of such recognition and the conflict that arises between civil liberties and socio-economic "rights" are discussed in chapter 5. For the present it is sufficient to state that such "rights" are not recognized as rights properly so-called by those who believe in the primacy of civil liberties. In any event such "rights" have never been incorporated in a constitution in an enforceable form and are often described as directives of state policy. There are human needs. Yet where a need exists, however compelling, a right cannot be said to automatically spring into existence.
2.2.1 Restrictions on rights
In countries which have bills of rights there is a basic statement of freedoms subject to permitted abridgement of such freedoms. Freedoms are restricted in the public interest on grounds of national security, to preserve public order, to protect public health, to maintain moral standards, to secure due recognition and respect for the rights and freedoms of others or to meet the just requirements of the general welfare of a democratic society. The United States Supreme Court has over the years qualified the rights in the constitution. Any statement of rights is not absolute and must of necessity be subject to limitations on the above lines. The right of free speech and expression does not extend to sedition, slander, defamation and obscenity. The principle of equality before the law cannot deny a legislature the power to classify persons for legislative purposes and to legislate affecting them, provided that the classification is not arbitrary and is based on a real and substantial distinction bearing a reasonable and just relation to the objects sought to be achieved. Thus the legislature could enact legislation regulating the activities of money lenders. This would amount to a singling out of money lenders and would be prima facie in conflict with the principle of equality before the law. But provided the classification is reasonable and there is a legitimate object to be achieved the legislation would nonetheless be valid. The above are instances of legitimate restrictions of rights. They are intended to illustrate that no right available to an individual or group is or can be absolute. This seems obvious but is often not appreciated.
2.2.2 The clash of rights
The reality that human rights are not absolute and are subject to reasonable restrictions does not mean that the rights can be arbitrarily curtailed according to legislative or bureaucratic discretion. The manner in which restrictions are to be determined and imposed and the criteria which apply to the formulation of restrictions are crucial. Human rights to be meaningful cannot be subject to crude majoritarian dictates. What distinguishes a human right from any other right is that a human right is available and enforceable by a minority, however small, even against the wishes of a majority. If human rights were to become subject to ordinary parliamentary control they would be no different from any other statutory right which parliament is free to confer and withdraw at its pleasure. The restriction of human rights is therefore a crucial and delicate question. They cannot be based on ideological perceptions of parliamentarians, bureaucrats or the Human Rights Commission but must be grounded on objectively ascertained and comprehended criteria. The issues which arise in the restriction of human rights are discussed in chapters 3.2, 3.3 and 10.4.
An article in the National Times week ending 25 August, 1979 referred to "the right to march demonstrations" and by way of example:
"Senator George Georges was gaoled yet again for upholding the principle of the right to democratic protest in Brisbane streets".
What are these rights? There is no absolute right to democratic protest or to march. There are rights of speech and expression and assembly. But these rights are subject to limitations. The right to freedom of association must be exercised so as not to interfere with the rights of others to move about the streets or go about their business. Where there is a clash of rights methods must be devised through rational analysis, political avenues and the courts so that the rights of all parties could be exercised so as not to inconvenience each other. If this is not possible (as it often is not) there must be a compromise or one must be restricted and give way to the other.
The clash of rights is a factor which the United States courts and citizens are very familiar with. An example of a conflict of rights is where the right of free expression of the press to coverage of news stories may clash with the right of an accused in a criminal case not to be prejudiced by adverse publicity of allegations made against him prior to trial or in a pre-trial hearing.
American journalists generally would not show such an obvious lack of understanding of the basic principles underlying fundamental rights as is demonstrated by the above quotation. The above article is just one of numerous examples in contemporary Australia where so called rights are claimed without reference to conflicting rights and basic common sense.
An example of a clash of rights which occurred in the United States is provided by the case where the Court was asked to outlaw explicit racial quotas for minority racial groups to enable them to enter universities. The idea behind the quotas was to provide a method by which underprivileged black sections of the community would be entitled to a specific number of places in a university. The rationale behind this and many other schemes which are being operated in the United States is to give some preference to blacks over whites in educational institutions and employment in order to remedy the alleged evils of past discrimination. In the case of Regents of the University of California v Bakke, 438 US 265 (1978) Bakke argued that the effect of racial quotas was that while individuals who had an inferior academic record to him had been admitted, he had as a consequence failed to gain admission. Bakke claimed that his right to equal protection before the law had been infringed. Split almost exactly down the middle, the Supreme Court offered a Solomonic compromise. It said that rigid quotas based solely on race were forbidden, but it also said that race might legitimately be an element in judging students for admission to universities. It thus approved the principle of "affirmative action", the system by which the government is pressuring universities, corporations and other institutions in the United States to provide more places and jobs and better pay for millions of blacks, other minorities and women.
Despite a wave of protests and demonstrations by militants, most observers realised that the court had made a careful and genuine effort at reconciling conflicting forces. These forces must of necessity come into conflict in the future in the actual working out of the principles stated in the judgment.
An instructive illustration of the clash of rights of which an activist Equal Opportunity Officer was unaware is provided in chapter 9.5.
The American position (illustrated by the analysis of the Bakke case) is that certain rights are guaranteed by law but the exercise of these rights might be restricted in various situations most notably in the public interest or where the rights of individuals or groups clash with each other. Similar qualifications are found in the law of all countries which have Bills of Rights.
In the common law system which many former British colonies have inherited there are no guaranteed rights. This is the position in Australia subject to a few not very significant exceptions. The right to freedom is residuary. One can do what the law does not forbid. The restrictions on freedom are contained in principles of English common law and English statutes which became applicable in Australia as a consequence of settlement and a mass of legislation passed by State and Commonwealth Parliaments. In a sense the common law position is the reverse of the American in that one can do what the law does not forbid. There is no general right to free speech and expression. There is such a right subject to such limitations which the common law or legislation prescribes (defamation, sedition, conspiracy, press control and so on). It is the same with the other freedoms. The content of freedom in the common law system is residuary. A person is free to do what is not forbidden by law.
However, though the manner of treatment of rights may differ, there is one principle common to both traditions. In short, freedom must of necessity be abridged. Every society modern or ancient has recognised limitations on freedom, either of custom or law.
Where human rights are respected it is not considered permissible or appropriate to restrict freedom arbitrarily or according to political expediency. Restrictions are determined by the objective evaluation of the contending interests in society and are often evolved through the process of litigation before an impartial judiciary. A more detailed analysis of the subject is provided in chapters 3.2, 3.3 and 10.4.
2.2.3 Judges, community values and a Bill of Rights
The argument is used that a Bill of Rights would involve placing excessive power in the judges. The judges interpreting a Bill of Rights are not acting in a vacuum nor are they unfettered by public comment, as they generally are in private litigation. Controversy and comment would naturally follow judicial action or non-action. This is very evident in the United States where there is an enforceable bill of rights and widespread comment and debate invariably follows significant fundamental rights judgments of the court. Thus judges are compelled to consider and reflect on community attitudes and values. It is significant that the United States Supreme Court handed down its epoch making civil rights decision in Brown v Board of Education 349 US 294 (1954) which outlawed racial segregation in the schools at a time when community attitudes to the issue were changing. In earlier years when community attitudes were more rigid the court had upheld racial segregation.
2.2.4 Community values
This illustrates an important factor which must be borne in mind in any discussion of fundamental rights. There necessarily exists a relationship between community values and the law. The law can creep ahead of community standards (more often perhaps it might lag behind) but it cannot be entirely divorced from popular values. This is one of the many answers to those who would question why anti-discrimination legislation passed in the Australian States has not achieved much. Another answer would challenge the whole concept of discrimination in the form it is often advocated in Australia. It can be maintained that discrimination if it is based on merit, honest achievement or other rationally defensible criteria is justifiable. Such discrimination is a necessary recognition of differences between human beings. The law operates in a social context and if the law is very much out of touch with community values, its potential to achieve change is significantly reduced. In the long term it can mould community values if community values are moving in that direction. Community sanctions and legal sanctions must necessarily work in concert to be effective. Likewise limitations on exercise of rights are brought about by law and political factors which often work in concert.
There is a case for a Bill of Rights enshrining community shared values, within the framework of which the courts reacting to arguments put forward by citizens and groups, in the context of public and media discussion and analysis of the issues, can pass judgment on conflicts which arise. In the absence of such a framework the ensuing debate, as individuals and groups are today becoming more assertive, is likely to be fragmented and lead to frustration and even violence, when the institutions provide no forum if not for redress, at least for expression of opinion and a dialogue which could lead to realisation of the existence of opposing opinions. The educative aspect of a Bill of Rights is perhaps even more important than the adjudicative function.
It requires emphasis that a Bill of Rights, if it exists, should be administered by properly constituted and independent courts and not by bureaucrats or non judicial tribunals. The problems arising from non-judicial bodies determining issues relating to rights and alleged rights are demonstrated in many parts of this publication.
One of the real problems in the human rights arena today is the failure by the Human Rights Commission and many who profess to be concerned about human rights to appreciate that human rights are complementary to each other. The pursuit of one particular right without regard to others is self defeating and destructive of the overall framework of rights which is essential to the operation of specific rights. Human rights activists overlook this dimension. Some rights such as the right to equality of opportunity, freedom of speech and freedom of person and property for reasons stated in chapters 6 to 8 are more important than other rights. If one right must prevail over another a rational basis must be provided. This involves an examination of the two rights, an evaluation of the importance of each and the context.
Thus for example in seeking to eliminate some forms of discrimination, damage is caused to other rights (such as freedom of speech or freedom of property) which together have progressively reduced various forms of discrimination and will continue to do so if allowed to flourish. A dispassionate look at the modern history of western civilization will reveal that these rights together with economic freedom have contributed more to the emancipation of oppressed classes than any form of governmental action. See also chapters 9.3 and 4.
Hohfeld, a legal philosopher, emphasised the relationship between rights and duties and also about the difference between right and privilege. Hohfeld emphasised that there cannot be a right without a duty. Right in one person presupposes a duty in another. The concept of a right without a duty is meaningless. Likewise he also distinguished between rights and privileges. A privilege is available on sufferance. It is a discretion vested in the person granting it. A right is an entitlement. On this analysis what are commonly called rights to employment, welfare, etc are not rights. A right to employment is meaningless because there is no person who is under a duty to employ. Welfare is not a right. It is a privilege which is given to certain persons.
Whether one agrees with this analysis or not, it is undeniable that at the commonsense level a right involves a duty in another person or institution. As an essential commonsense corollary, it must also involve an acceptance of that duty by the person who is subject to it. It is ironic in society today that while more and more people are demanding rights, fewer and fewer people are concerned about duties, least of all those who are most vocal in the assertion of rights. Governments, the Human Rights Commission and many other government agencies provide doubtful leadership in this regard. They are educating people about their rights and are attempting to make more and more rights available with no reference to logic and commonsense. But they seem unconcerned about the need to educate people about duties and the importance of a sense of responsibility.
A dangerous by-product of the welfare state and the growth of government is a profound attitudinal change in society which makes people demand more and more and contribute less and less. This transformation of the social psyche has taken place imperceptibly to the point that it unconsciously pervades the entire society. The preoccupation with rights (particularly state created social and economic rights) has become an obsession. Although this is not an intrinsic evil, the pursuit of rights becomes self defeating when it is unaccompanied by the commitment to duties. The endless cacophony of demands by interest groups has become the dominant feature of the modern Australian state. These demands come not only from the poor and the underprivileged, but also from privileged academic, bureaucratic, social and business groups. At the same time there is a deafening silence on the question of individual responsibility to society.
Surely the time has come to realise and to emphasise that rights, whether material or political, depend on the discharge of duties. Wealth and prosperity are created by effort. Only continuing effort can sustain them. Western societies through effort have achieved a level of prosperity unparalleled in history. But history has continually demonstrated that the greatest of civilisations decline and fall when they succumb to indulgence at the expense of discipline and endeavour. The fate of Egyptian and Roman civilisations are prime examples. It is not too early for Western civilisation to heed this supreme lesson of human experience. The interventionist welfare state has become a super patriarchal entity from which individual members have come to expect solutions to all problems. Rights are being demanded and duties forgotten.
A serious and disturbing recent trend in Australia in the human rights area is the process whereby Commonwealth and State Parliaments legislate in relation to what are alleged to be specific areas of human rights and invest powers, not in properly constituted courts of law, but in non-judicial tribunals and individuals. This process involves serious derogations of civil liberties. One of many examples is the Sex Discrimination Act (Cth) 1984. This trend reflects a profound lack of understanding of the theoretical and practical aspects of human rights.
A major failing in the current Australian intellectual trend is the non-appreciation of the indispensable role of the judiciary in the operation of any system of human rights. An independent and impartial judicial apparatus is a prerequisite for the meaningful existence of human rights. Human rights can be violated either by state action or by private action. Human rights were originally conceived as safeguards against oppression by rulers and their importance as such has not diminished. It need hardly be emphasised that only a wholly independent judiciary can guarantee human rights against incursions by state action. When it comes to the violation of human rights by private action, it is important to appreciate that most disputes involve a conflict of rights or claimed rights with regard to liberty. The resolution of such disputes affects not only the liberty of the complainant but also of the defendant. Judicial determination is therefore essential.
The current tendency to seek human rights goals through bureaucratic action is characteristic of the interventionist state. The Sex Discrimination Act reflects a step in this direction by making the Human Rights Commission an adjudicatory body with respect to complaints of discrimination, while retaining its promotional and investigatory functions. Although its findings of guilt are said to be non-binding (as originally drafted the Act would have made them prima facie evidence of guilt), a finding of guilt by the Commission remains a prerequisite for the institution of action in the Federal Court. In practical terms, the Commission conducts a pre-trial inquiry which can have considerable effect on the final outcome of trial.
The Commission exercises the following types of powers and/or functions: educational functions, investigative and police powers and functions of a law maker, administrator and judge. Montesquieu's warning against accumulation of power has been the basis of liberal democratic thought which has been significantly eroded in recent times in the name of human rights, discrimination, etc. The Commission further possesses an unrestrained power to delegate its functions.
An important aspect of the traditional legal system is the independence, impartiality and lack of bias of the judiciary. Professor Lauchlan Chipman (Quadrant, May 1984, p 28) focusses on the anomalous position of the Commission of Human Rights:
The Human Rights Commission, under the form the Sex Discrimination Act has finally taken, is still given powers and ways of proceeding which guarantee, when sex discrimination complaints get to it, that justice will never seem to be done, and which make it somewhat naive to expect it to be done in fact.
To see that this is so, let us imagine we were to deal with shoplifting in the way that sexual discrimination is to be dealt with under the new Commonwealth Sex Discrimination Act. If a person is suspected of shoplifting a complaint will be made to the newly formed Shopping Commission, which will in the first instance refer it to a newly appointed Shopping Commissioner (a shop owner who has always been passionately concerned about the harm done by shoplifting) to see if the complaint is substantial, and if so whether there is any possibility of achieving a reconciliation between the suspected shoplifter and the shop owner. If the Shopping Commissioner fails to resolve the matter it will be referred to the full Shopping Commission (chaired by a retired distinguished judge, who now owns a shop) for a fresh enquiry. The other members of the Shopping Commission are super-market and corner store owners, and a couple of people who have never owned shops themselves, but feel very strongly that the community does not take shoplifting seriously enough. At this enquiry, the suspected shoplifter will not have the right of legal representation, except with leave of the Shopping Commission or if it, for any reason has counsel assisting it. The Shopping Commission will not be bound by the ordinary rules of evidence nor by legal technicalities, but must proceed expeditiously and economically for all concerned. It has no power to directly enforce its decision but may seek an order from the Federal Court if any determination it makes is not followed.
Would anybody seriously recommend this as a way of dealing with shoplifters or suspected shoplifters? Presumably it would bring howls of protest from civil liberties organizations and the political Opposition. Would anybody seriously expect justice to be done? And if it were, would it seem to be done? Yet this is precisely the approach which has been so widely endorsed (and one can only hope not yet understood) for dealing with allegations and complaints to do with sex discrimination. Such a way of proceeding has more in common with the People's Courts of the Chinese Cultural Revolution or the trials of Oceania than it has with a tradition wedded to justice in and before the law.
Some of the comments made above apply to the Australian Human Rights Commission. The Human Rights Commission is noticeably silent with respect to the erosion of human rights which is taking place currently in Australia. In truth it is making a very significant contribution to such erosion. chapter 13 is about the Human Rights Commission.
The inevitable consequence of undermining the traditional role of the judiciary as the guardian of civil liberty and entrusting that responsibility to the politicised bureaucracy, is that human rights become subjective standards capable of being used as the instruments of oppression. Chapter 15 is about abuse of rights.
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