The wrongs of a WA human rights act: a rights-based critique.(LEGAL NOTES)(Government of Western Australia)(Report)

• Author: Zimmermann, Augusto
• Position: 168619627
• Pages: 62(7)

The Government of Western Australia is preparing to enact a human rights act. The government suggests a particular model similar to those existing in the United Kingdom, New Zealand, the Australian Capital Territory and Victoria. For such a purpose it has decided to appoint a Consultation Committee for the Proposed Human Rights Act, which has already called for public submissions on the proposed Human Rights Act and on eight questions about human rights in Western Australia. In doing so the WA Government "believes that introducing a WA Human Rights Act would help to establish a human rights culture in this State because it would create a political and administrative culture in which the need to respect human rights is understood and acted upon".(1)

PROTECTING HUMAN RIGHTS

But in contrast to what the WA government suggests, the protection of basic human rights has never required any human-rights declaration. Rather, the tendency of governments to acquire ever-increasing power has traditionally been curtailed in Western societies by a constitutional system of checks and balances, not a bill of rights. The fact that real protection of basic rights has never required any bill of rights was previously recognised by Baron de Montesquieu, for whom the genius of the English constitution was that it effectively protected our most fundamental rights and freedoms in practice, not just in theory. The "father" of modern constitutionalism and separation of powers did not put a blind faith in any abstract provisions of law, and this is probably why his major contribution was called The Spirit of the Laws.(2) Similarly, Sir Harry Gibbs, formerly Chief Justice of the High Court of Australia, once contended that "the most effective way to curb political power is to divide it. A Federal Constitution, which brings about a division of power in actual practice, is a more secure protection for basic political freedoms than a bill of rights."(3)

On the other hand, in these days people seem to believe in positive law as a sort of panacea that can heal society from all its socio-economic "diseases", real or imaginary. They need though to be reminded that some of the most oppressive regimes in the world's history have also enacted bills of rights. Indeed, the governments of China, Cuba, Rwanda, Sudan--all of them notorious violators of human rights--have elaborated sophisticated bills of rights.(4) And even Nazi Germany possessed a glossy bill of rights. In the words of Charles Francis, "Nazi Germany had what purported to be an excellent Bill of Rights, as did the Soviet Union under Joseph Stalin. These bills of rights proved of little avail, because there was no separation of powers".(5)

Since some of the world's worst political regimes have also promulgated bills of rights, it seems that some countries have no problem with the lack of proper legislation in this area. The problem, however, might reside in the huge distance which separates formal rights inscribed on paper from their effective exercise, and, above all, the guarantee of their regular exercise. When a government refuses to govern under the rule of law, power will rest not so much on constitutional law, but rather on governmental will.(6) A government that is not subject to formal checks and balances can always exercise its power per leges (through legislation) but not sub leges (under the law). Such government may even elaborate a rather sophisticated bill of rights, but this by itself will never ensure the full respect to its formal provisions.

BASIC RIGHTS OF THE CITIZEN

Obviously, bills of rights can be useful in situations in which statutory provisions...