Break the silences

Keen to protect citizens from Constitutional silences...Larissa Behrendt.

Common law and legislation are not enough to protect citizens from the silences in our Constitution about rights.

By Kerri Carr

The entrenchment of the right to be free from racial discrimination, the right to due process before the law and the right to equality before the law are needed in the Constitution in addition to a legislative bill of rights, University of Technology, Sydney law and Indigenous studies Professor Larissa Behrendt told Federation's Annual Conference on July 6.

Professor Behrendt said one of the key arguments against a bill of rights was that under our legal system, rights are already well protected through both the common law and legislation, but from an Indigenous point of view, this argument overlooked the many examples where relying on government benevolence had not been enough.

"There have only been three times since the Racial Discrimination Act was passed in 1975 when it has been suspended from applying: firstly in relation to the Native Title Amendment Act in 1998, secondly in relation to the Hindmarsh Island Bridge dispute and thirdly in relation to the Northern Territory intervention," Professor Behrendt said.

"Each time it's been repealed, it's been repealed so that it cannot provide protection to what is arguably the most vulnerable sector within the community."

She noted dispossession of traditional land, genocide, cultural genocide, lack of access to services, racism in the provision of services, the lack of due process before the law and the policy of removing Aboriginal children from their families.

"That many of these experiences were legal, even facilitated and sanctioned by Australian law, is motivation to continually question how our legal system could be fairer."

Professor Behrendt said she supports a legislative bill of rights but was mindful that it could easily be overridden by the legislature.

"The experience that I outlined Aboriginal people have had with the Racial Discrimination Act 1975 being repealed three times and at times when the protection was needed the most highlights this key weakness of the legislative model," Professor Behrendt said.

"So, I would propose that we look at a legislative bill of rights but that we also think about the entrenchment of three fundamental rights into our Constitution - the right to be free from racial discrimination, the right to due process before the law and the right to equality before the law.

"It would ensure that the assumptions made by the founders of the Constitution that we needed a legal system that could discriminate on the basis of race could finally be countered and it would stop our modern day governments from reverting to the suspension of protections of racial discrimination so that they can enact policies that are detrimental to Aboriginal people."

She said a bill of rights would be one of the key mechanisms to be able to remedy the harshest impacts of the gaps in human rights protections in the Constitution.

©2000-2002 NSWTF Online is a resource for teachers
provided by the NSW Teachers Federation.
[Authorisation of election comment] [Privacy]

http://www.nswtf.org.au/journal_extras/breaksil.html
Last Modified: 07 Aug 2008