7 September 2017Feature
In 1953 the Council of Europe adopted the European Convention on Human Rights, establishing a regional system to protect human rights in its member states, complete with domestic and regional courts to enforce it. The Convention now covers 47 European states, giving individuals the ability to petition both domestic courts and the European Court of Human Rights when human rights abuses occur.
European states that are members of the European Union (which is separate from the Council of Europe) have an additional layer of rights protection, which is judicially enforceable through domestic courts and the Court of Justice of the European Union.
Regional systems have also developed in the Americas through the Organisation of American States, and through the African Union. Both the Americas and Africa now have supranational human rights protections, backed by the judicial force of the Inter-American Court of Human Rights and the African Court of Justice and Human Rights.
This leaves Asia and the Pacific as the only region without a human rights system.
A regional human rights system could be extremely beneficial for Australia and New Zealand. Both countries lack any kind of substantial human rights protection at the national level — neither of their constitutions contain a bill of rights, and nor do the state constitutions in Australia. New Zealand’s Bill of Rights Act 1990 does offer some protection for human rights, but crucially it does not invalidate later enactments or permit judicial review of legislation.
International protections offer no recourse either. Australia and New Zealand are both parties to most of the 18 core United Nations human rights treaties and optional protocols; Australia has ratified 13 and New Zealand has ratified 14. However, these treaties cannot be invoked by individuals in domestic courts. For example, an Australian cannot take the Australian Government before an Australian Court for breaching a provision of the International Covenant on Civil and Political Rights. Further, there is no international court that individuals can petition if Australia or New Zealand breaches its obligations under these human rights treaties.
Despite having little recourse for violations of human rights, Australia and New Zealand have relatively good track records — not perfect, but relatively good — when compared to many of their neighbours. China, India and even North Korea (yes, North Korea) have far more extensive constitutional rights protection on paper, but cannot be considered bastions of human rights in practice.
By contrast, both Australia and New Zealand are liberal democracies regardless of their lack of constitutional rights protection. This is because their Parliaments follow the British tendency to respect human rights — admittedly to a varying degree — without having formal protections. In principle, this means that the Parliaments protect rights by not taking them away, while having the flexibility to limit rights and freedoms against competing considerations like national security, public morality and other rights and freedoms.
This puts an enormous amount of trust in Parliament to legislate in a manner that respects human rights. Generally speaking, Parliament does respect human rights, but when it doesn’t, it really doesn’t.
Most human rights jurisprudence recognises a “margin of appreciation” where governments may derogate from their human rights obligations in the pursuit of legitimate aims. The result is, in states that have higher levels of rights protections, a slight erosion around the edges of certain rights, the level of which varies from state-to-state, but which does have a limit. In Australia and New Zealand, however, there are no limits on this erosion.
An issue like mandatory telecommunications data retention demonstrate this in action. In 2006 the European Union enacted the Data Retention Directive, which required all member states of the EU to ensure that telecommunications data (essentially “everything but the content of communications”) be kept and stored for the purposes of law enforcement for a period of between six and 24 months, at the discretion of the member state in question. In broad terms, this meant that every member state of the EU would keep and store all phone and Internet records for a period of six months to two years.
The Directive raised significant privacy concerns. The High Court of Ireland and the Constitutional Court of Austria requested a preliminary ruling from the Court of Justice of the European Union on the question of the validity of the Directive, which had been raised in proceedings before those courts. The Court of Justice determined in April 2014 that the Data Retention Directive was incompatible with the Charter of Fundamental Rights of the European Union, and thus invalid. In its judgment, the Court of Justice strongly implied that mass surveillance in the form of blanket data retention was prohibited by European Union law, and in 2016 it firmly stated this was the case.
Although the Data Retention Directive had been nullified in April 2014 on the basis that it breached the fundamental right to privacy, Australia enacted legislation establishing a mandatory data retention regime almost exactly a year after the Court of Justice issued its decision. Australia adopted a long data retention period — 24 months, the maximum that the Directive suggested in the EU — and permits warrantless access to retained data. Surely there is a case to be argued that Telecommunications (Interception and Access) Amendment (Data Retention) Act 2015 violates fundamental rights?
But Australians have nowhere to turn. There is no constitutional right to privacy and international law cannot be invoked in Australia, so the High Court has no power to overturn the legislation. Australia is not a member of a supranational organisation like the European Union, nor is it a member of a supranational court like the European Court of Human Rights, and none of the core UN human rights instruments established a judicial body that can be petitioned by individuals.
Of course, it could be argued that Australians and New Zealanders can use democratic processes like elections and petitions to restore human rights that have been eroded. This rarely, if ever, happens in practice, and is also heavily reliant on the majority to protect minority interests. The great thing about human rights is that they apply to minorities as well as majorities, in equal measure. The right to freedom of religion, for example, protects not just the predominant religion, but also minority religions and everything in-between. The repeal of a law infringing a minority’s religious freedom should be of interest to the majority, but often isn’t a priority, and that’s where the judiciary can step in to protect the rights of the minority that have been cast aside through democratic processes.
A regional system could also help to lift the human rights standards in other Asian and Pacific countries. With the assistance of countries that have similar human rights records (such as Japan, South Korea and Taiwan) and countries with a willingness to improve, diplomatic pressure can be brought on the less rights-respecting countries in the region to join an “Asian and Pacific Convention on Human Rights” and submit to the jurisdiction of a regional court.
Sceptics may think it is unlikely that countries such as China, Saudi Arabia or Indonesia would be willing to participate in such a system. However, practically all European nations are party to the European Convention on Human Rights, including most of the former Soviet Union, Eastern bloc countries, and the former Yugoslavia. All African nations are members of the African Union, and therefore subject to the jurisdiction of the African Court of Justice and Human Rights, despite the dismal human rights situations in many of these countries at present.
An initiative to establish a regional human rights system for Asia and the Pacific, comparable to those in Africa, the Americas and Europe, and spearheaded by Australia, New Zealand, Japan, South Korea and Taiwan, could be successful at giving the citizens of these countries recourse for human rights violations, improve the human rights situation in other countries, and establish minimum standards for human rights protection in the region. There is ample precedent in the form of legal instruments and jurisprudence on which to build a successful system — all that is required is initiative.