Human Rights Consultation Commission

July 31st, 2005

To; Professor George Williams
Rhonda Galbally
Andrew Gaze
Haddon Storey QC

Dear Committee Members,

Please find (follows) the submission of the Melbourne Unitarian Peace Memorial Church to the Human Rights Consultation Committee.

The Church would like to express in the first instance, its deep disappointment that such an important issue has not received the time for the widespread community discussion that such an important issue entails.

It is the strongly held opinion of the Church that a substantial extension to community submissions be granted.

Yours sincerely,

Gary Harper
Chairperson
Melbourne Unitarian Peace Memorial Church

Submission Addressing the Human Rights Consultation Community Discussion Paper

by the Melbourne Unitarian Peace Memorial Church

Statement of the Church:

Unitarians, and our Universalist colleagues, come from a strong history of supporting human rights even when it has been politically dangerous to do so.

We hold the honour of being the first religious orientation to be declared heretics by mainstream Christianity because we emphasized the humanity rather than the alleged divinity of Jesus. We also hold the honour of being the first religion to introduce freedom of religious expression in Europe, and the honour of the first religion to insist on the application of reason to religious texts.

Unitarians have suffered great persecution during history for our beliefs. Many of those who have held unitarian beliefs were exiled, poisoned, tortured and burned at the stake, including one unfortunate individual (Edward Wightman, England, 1612) was burned twice. Understandably we are very sensitive to the concept of human rights, strongly advocating that they are not a transitory or localised matter that should be subject to populism, but rather that they are universal and should exist in perpetuity.

Within Victoria, the Melbourne Unitarian Peace Memorial Church was one of the first churches established in Melbourne and one of our founding committee chair was the first chief justice of Victoria, Sir William a'Beckett. Our first service, in 1852, cautioned against the implementation of theologies that were contradictory to reason, understanding and the intellect, as these would damage laws and customs. We ordained the first woman in Australia (and indeed the entire British Empire), Rev. Martha Turner in 1873, advocated peace when others wanted war, and advocated welfare when others blamed the dispossessed for their impoverishment.

The Melbourne Unitarian Peace Memorial Church is a practical organisation that takes its motto, "Seek the Truth and Serve Humanity" seriously. We consider the proposal to introduce a Charter of Human Rights for the State of Victoria as a great opportunity to improve our society. It must be built on strong foundations with practical intent and without contradiction. Please take into account our carefully considered submission.

Key Question 1: Is change needed in Victoria to better protect human rights?

The Melbourne Unitarian Peace Memorial Church rejects any suggestion that human rights are sufficiently protected in Victoria. Further, the Melbourne Unitarian Peace Memorial Church rejects the claim that the political system is the best means to ensure the protection of rights.

The political system of democracy is best used for the management of res publica, the public thing. When democracy is applied to the natural and universal rights of individuals, the vagaries of political climate and the construction of public opinion by populist and sensationalist media distort reasonable decisions. Under such circumstances, "democracy", which is supposed to include an equality of rights, becomes as "pleocracy", where individuals are threatened by "the tyranny of the majority" in the words of the unitarian Thomas Jefferson.

The Melbourne Unitarian Peace Memorial Church rejects concerns that a Charter of Human Rights will "set in stone" rights in a world that is constantly changing. The entire purpose of instituting natural and universal rights is in recognition that there are particular characteristics common to all members of the human species that transcend culture, time or technological development. Indeed, it is nonsense to talk of "human rights" at all unless one recognizes that the concern is for all humans.

The Melbourne Unitarian Peace Memorial Church argues that human rights are not adequately protected in Victoria. We argue that the Constitution of Victoria needs to be amended to incorporate a Charter of Human Rights.

Key Question 2: If change is needed, how should the law be changed to achieve this?

The Melbourne Unitarian Peace Memorial Church argues that a Charter of Human Rights needs to address both cures to existing discrimination and economic dispossession as well as prevention of future instances. In this regard, the Melbourne Unitarian Peace Memorial Church rejects the Victorian government's focus on prevention only. We strongly hold that the introduction of a Charter of Human Rights must be honest in past injustices as well as preventing future injustices.

With regard to legal change, the Melbourne Unitarian Peace Memorial Church emphatically rejects the suggestion that a Charter of Human Rights should be introduced as an Act of Parliament, rather than being embedded in the Constitution of Victoria. Introducing the Charter as an Act is the most effective means to allow the Charter will to be abolished at a future date or be amended according to the populist vagaries of the day, like any other Act of parliament. This is contrary to the principle that human rights are a universal concern of which our knowledge appreciates slowly.

It is well recognised by theorists and advocates of human rights that the most effective and stable means of protecting such rights is by lasting inclusion in a Constitution. A Constitutional inclusion is a clear statement by government that limits its role in the actions and transactions of free and peaceful members of society. The entire point of a Charter of Human Rights is for the State to limit itself. For this reason, the claims of the Statement of Intent that the Parliament must retain sovereignty over the application of human rights is contradictory.

Key Question 3: If Victoria had a Charter of Human Rights, what rights should it protect?

The Melbourne Unitarian Peace Memorial Church argues that like other statements of human rights it is not necessary to engage in undue complexity. Because human rights are universal they are inevitably intuitive and pragmatically obvious.

The Melbourne Unitarian Peace Memorial Church rejects the focus on civil and political rights only. The Melbourne Unitarian Peace Memorial Church particularly rejects the claim in the Statement of Intent that legislation of economic rights is complicated because it involves allocation of resources. In this submission, the Melbourne Unitarian Peace Memorial Church provides a simple recommendation, based on resource allocation that provides economic rights.

The Melbourne Unitarian Peace Memorial Church phrases its recommendations in a manner that advocates a review of existing laws as well as tests for future developments and that does not require particular rights for disadvantaged minorities or the economically dispossessed. Indeed, the idea of "particular" and "sectional" rights is semantically impossible to the definition of human rights. A right cannot simultaneously be "human" and then only refer to a particular group of humans (although, a right may be accrued, as in the case from childhood to adult or from resident to citizen). If particular groups are shown to have difficulties due to structural dysfunctions of the social system or by technological limitation then the most practical means of alleviating these problems are through treat them as transitory problems that demand a solution. They are therefore most appropriately dealt with Acts of Parliament.

The Melbourne Unitarian Peace Memorial Church advocates the following in a Constitutional Charter of Human Rights.

• The right of all adult persons of adult reasoning to be the sovereign owners of their own bodies and to engage in any self-regarding acts that they determine as being for right for their own happiness.
• The right of all adult persons of adult reasoning to participate with other such persons on the basis of informed and mutual consent.
• The right of all adult persons of adult reasoning to rent natural resources from the community in accord to their will, and the right of said persons to receive their share of the accumulated rent to ensure a guaranteed minimum income.
• The right of all adult persons with adult reasoning to be free from discrimination within the social system.
• The right of all persons under the care of the State to be protected from torture, cruel and unusual punishment, the death penalty, and to allowed writs of habeas corpus ad subjiciendum.
• The right of all citizens with adult reasoning to be participate in the political process through multiparty democratic elections with secret ballots.
• The right of all citizens with adult reasoning to have access to records held by institutional bodies, including all departments of government, and legal persons.
• The right of all citizens with adult reasoning to represented in the Parliament of Victoria and for their representatives to be accessible. The maximum ratio of electors to representatives in the Legislative Assembly must not be greater than 10,000:1 and in the Legislative Council 40,000:1
• The right of all persons to be protected from violence and the threat of violence.

Key Question 4: What should be the role of our institutions of government in protecting human rights?

The Melbourne Unitarian Peace Memorial Church reiterates its opposition to the Statement of Intent's suggestion that the Parliament retains sovereignty in any implementation to human rights. The Melbourne Unitarian Peace Memorial Church reiterates that this is contradictory in semantics, as human rights by definition transcend localised contexts. A Charter of Human Rights is a statement by government that certain areas of life are one's where the will of the public (either a majority in the case of civil rights, or a minority in terms of exclusive possession of natural resources) cannot intervene under any circumstances. As the discussion paper correctly notes (pp40-41) empowering Parliament to define exactly what constitutes human rights is a means to ensure that the definition is highly fluid and subject to political and populist vagaries.

It is the opinion of the Melbourne Unitarian Peace Memorial Church that this would not provide adequate protection for human rights. We believe that the U.S. model, whereby the Courts may invalidate a law because it fails to reach an acceptable standard of human rights, is preferable to a system where politicians have to deal with the "political consequences" (p41) of such a decision. The Statement of Intent seems unconcerned that political popularity, as a trivial reading of history makes readily evident, can be gained by the most terrible persecution and scapegoating of minorities.

At the very minimum, the Melbourne Unitarian Peace Memorial Church believes that the Attorney-General should review existing and proposed laws for potential breaches of human rights and that government departments be required to independently audited and report against human rights performances. Courts should be allowed to declare laws incompatible with the Charter.

Key Question 5: What should happen if a person's rights are breached?

Whilst the Government's stated preference is for "dialogue, education, discussion and good practise rather than litigation" (p43) it must be recognised that this is mere pleasantry. Breaches of human rights need to be recognised for what they are, the most extreme criminal acts of violence against persons, far worse than breaches of a civil code of conduct or breaches of by-laws and regulations. Indeed, breaches of human rights are arguably the only acts that should constitute both a moral and legal crime.

Nevertheless, the Melbourne Unitarian Peace Memorial Church is an organisation that argues for the inherent dignity and worth of all human beings and their capacity for reason. Whilst we advocate adequate compensation to the victims of human rights breaches we find little gain in punitive approaches, including incarceration, against those who have engaged in a breach of human rights. Indeed, the available evidence suggests that this actually increases the propensity to engage in further breaches. Because no sane person would willingly harm another against their will, the Melbourne Unitarian Peace Memorial Church believes that those who have breached human rights should be treated accordingly.

Key Question 6: What wider changes would be needed if Victoria brought about a Charter of Human Rights?

And

Key Question 7: What role could the wider community play in protecting and promoting human rights?

The Melbourne Unitarian Peace Memorial Church rejects the claim in the discussion paper that "human rights laws are not likely unless people want and understand them". The Melbourne Unitarian Peace Memorial Church holds that human rights, because of their universality, are desired and understood by all, however, as many cognitive and developmental psychologists will readily testify, many adults, although perfectly capable under the right circumstances, rarely consider matters beyond their own egotistical calculation. In other words, they think (and thus behave) like children.

In this regard, the Melbourne Unitarian Peace Memorial Church advocates community education not in human rights in particular, but in the community education of setting up reciprocal and transparent arrangements. Such education should be highly decentralised to invite the maximum possible participation.

Education by itself however is insufficient when a political and economic system runs contrary to the moral message. The Melbourne Unitarian Peace Memorial Church has stated the particular human rights that ought to be systematically implemented. If this is not done, then the education and promotion of human rights and transparency will be seen as frivolous to the "real" concerns of competitive deception for individual power and wealth. It is the content of human rights, political and economic, that must be afforded the greatest priority.

Advocates of "cultural changes" (c.f., pp48-49 of the Consultation Paper) are, in this regard, the inverse of those who seek only legalistic and punitive system of enforcing human rights. The former will be give lip service without content, and the latter can enforce compliance through fear. Both strategies fail to establish human rights through practise, conviction and understanding. Once again, the Melbourne Unitarian Peace Memorial Church reiterates that it is the content of the rights that has priority. Loyalty to political and economic concepts are not won through fear or marketing, but rather on their grounding and reasons.

Key Question 8: What other strategies are needed to better protect human rights?

The Melbourne Unitarian Peace Memorial Church argues that the best strategy to better protect human rights is widespread community consultation on what actually constitutes human rights in the first instance before proposing a Charter. Such a consultation must be highly decentralised and held in small focus groups to allow the participation of all interested individuals (vis-a-vis The Purple Sage Project).

The Melbourne Unitarian Peace Memorial Church argues that the political system is wildly out of touch of common people that is generating a cynical delegitimation and lack of loyalty to legal mores. Part of this problem is caused by the constant rise in the ratio of constituents to members of parliament, which leads to an increasing distance between citizens and their representatives. The Melbourne Unitarian Peace Memorial Church argues that all citizens must have the opportunity to engage in politics in a meaningful way and that politicians must have the opportunity to consult with their citizens to discern their hopes and desires. The Melbourne Unitarian Peace Memorial Church argues that this is both a human right and a strategy to ensure that real and practical human rights are introduced. The Melbourne Unitarian Peace Memorial Church therefore argues for a fixed maximum ratio between electors and members of parliament.

Key Question 9: If Victoria introduced a Charter of Human Rights, what should happen next?

The Melbourne Unitarian Peace Memorial Church has already stated from the outset that we do not believe there has been sufficient time or consultation to introduce anything as important as a Charter of Human Rights. The establishment of such a Charter should be an act of groundbreaking importance. The lack of widespread public consultation and debate even suggests, arguably, a lack of concern or desire to implement substantive human rights.

The Melbourne Unitarian Peace Memorial Church questions the Consultation Paper's "big question" on seeking a measurement on determining whether human rights have improved or not on the basis of any Charter. Such an empirical question cannot be feasibly answered because there has been insufficient opportunity to survey members of our society on whether they feel that the laws and practises of the State of Victoria currently breach human rights or not. Once again, we reiterate our concern in the cover letter to this submission. The subject of a Charter of Human Rights has been given insufficient public discussion for a workable and realistic implementation. We are deeply pessimistic of the content and the future of such a Charter in these circumstances.

In closing, we remind the Committee of the words of Immanuel Kant made when the greatest and most inspirational statements of human rights, the American Bill of Rights and the French Les Driots Des Hommes were composed. We remind the Committee that they have the opportunity, if they have the conviction and desire, to compose a recommendation of equal strength and lasting credibility.

Enlightenment is man's emergence from his self-incurred immaturity. Immaturity is the inability to use one's own understanding without the guidance of another. This immaturity is self-incurred if its cause is not lack of understanding, but lack of resolution and courage to use it without the guidance of another. The motto of enlightenment is therefore: Sapere aude! Have courage to use your own understanding!

Immanuel Kant. An Answer to the Question: "What Is Enlightenment?", 1784

Paper Prepared by Lev Lafayette for the Melbourne Unitarian Peace Memorial Church in consultation with the Committee of Management