OPINION: Third Column in Crescent Times - Muslims in Australia have no rights!

I have some terrible news for you all. Muslims in Australia have no rights.

This is no joke. And as if to make matters worse, Christians also have no rights. Nor do Hindus, Buddhists, Jews, Sikhs or even atheists. In fact, no one in Australia, no Australian citizen or permanent resident, has any rights.

And no, I’m not writing this because I have gone stark-raving mad. I’m giving you free legal advice. I’m telling you this as a lawyer, so you can trust me on this one.

When I was in first year uni, my law lecturer told me that Australia’s legal system is based on the English Common Law tradition. There are a number of countries that follow this tradition, including many Muslim-majority states like Malaysia and Pakistan. Of course, it’s no mystery to many of us that Muslims living in many Muslim countries have few if any rights. Recent media reports suggest Malaysian Muslims don’t even have the right to engage in yoga.

Then again, I doubt that the Malaysian Common Law could improve some of the wackier declarations of Malaysian muftis. Returning to that first year law class, my lecturer told me that the Common Law tradition doesn’t grant rights. Instead, it grants citizens these interesting legal creatures called “liberties”.

Citizens can always decide to limit or even dispense with these liberties. How so? By electing members of Parliament to represent them who decide to legislate these liberties out of existence.

But why would citizens wish to deprive themselves of their own liberties? There could be any number of reasons. People might decide that there are internal or external threats that need to be dealt with. Before it was unceremoniously booted out of office, the Howard government kept telling us that it needed to implement a range of strategies to meet the apparently new threats of al-Qaeda terror. This included starting a war in Iraq that created enough chaos to enable al-Qaeda to establish a new front, to wreak havoc in yet another Muslim country. No doubt Osama bin Ladin was clapping his hands in glee when Messrs Howard and Downer joined Messrs Bush and Blair in that disastrous invasion.

The Howard government also kept reminding us that the terrorists hate us because of our values and our liberty. And what better way to protect that liberty than by legislating it almost out of existence?

The weird thing is that Australia claims to be a liberal democracy. Now liberalism is a political philosophy that places emphasis on the rights of individuals to be free of the coercive power of the state wherever possible. But the Common Law gives a sovereign parliament the right to limit the freedoms and liberties of individuals. MP’s can make laws that take away our liberties. But they can also make laws to create rights.

By now, some readers will be completely confused. So let me get to the point. We need a Charter of Rights. Or perhaps we need what citizens of the United States take for granted – a Bill of Rights. The US Bill of Rights hasn’t stopped the Bush administration from implementing draconian laws. But it has provided US citizens with a means to challenge and fight these laws in the courts.

Catharine Branson QC was a Federal Court Judge for 14 years. She is now president of the Australian Human Rights Commission. In a December 2007 speech, she made this startling remark:

... neither Australian lawmakers nor those who make decisions under Australian laws are sufficiently conscious of people’s rights. I have experienced lawmakers restricting freedom of speech. I have experienced public decision-makers making incorrect decisions with harmful consequences for people.

We’re fortunate to live in a country where we have at least some say over the decisions made by our governments. But having elections every 3 years isn’t enough to establish or protect human rights. It certainly hasn’t been enough to stop our government from locking up children in detention centres or deporting citizens. Victoria and the ACT both have a Charter of Rights. The United Kingdom has implemented a Charter of Rights, as has Canada and New Zealand. In fact, the Commonwealth of Australia is one of the few English-speaking democracies without such a charter.

The risk in having a Charter is that it gives unelected judges the power to disrupt the law making processes of our elected representatives. In any event, this is a debate in which Muslim Australians have much at stake. Unfortunately Muslims are frequently used as political and legislative footballs. We often feel our rights are trampled on. The national consultation and debate over a possible Commonwealth Charter of Rights is one process we need to become involved in.

First published in the January 2009 edition of the Crescent Times.


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