This statement and the cases listed on this web site demonstrate the situation in Australia when it comes to protection of rights and human rights. The Australian legal consumer experience, in fact, is what prompted the formation of OVOP.
Australia is rather isolated. Many people around the planet will only know of Australia from 'Throw another shrimp on the barbie' tourist advertising or the sociological mythology provided by Australian TV soaps and films. This image is projected by the Australian Government and ensures that the majority of people do not see any local human rights problems. Within Australia very strong defamation laws and a well behaved media owned by a very few powerful people closely allied to major political parties means that a poorly informed public rarely hear of any matter that the two major parties do not wish them to hear of. Unlike the USA Australia never managed to throw off the Imperial yoke of the British Empire and the teaching of civics has historically been absent in Australian schools. The old saying went as follows: To be a good Australian keep your hair cut, your lawn cut, and your mouth shut. .
The Australian Government does not feel bound by international covenants and signed contracts with the UN.
The current Prime Minister of Australia Mr John Howard said in a radio interview:
"You can ignore your obligations under an international treaty if you choose to."
Australian Reluctance over 'Rights'
Few Australians understand that in reality their government has never seen fit to clearly give them formal human rights.
Australians are very unprotected when it comes to having any say at law over abuses by government and its agencies. A reluctance on rights in Australia is perhaps a symptom of never having clearly thrown off a colonial past but rather having adopted a repressive legal system intended for use in running a penal colony.
A particular problem in Australia are voting laws and geographical isolation. Australia has, along with totalitarian nations around the world, a compulsory voting system and a concentrated mass media. Political parties do not have to work for votes (if you do not vote in Australia you face fines or jail) and a large 'donkey vote' controlled by the media barons allows political parties in favour with these real power holders to then claim a majority mandate from 'the people'.
For human rights progress in Australia a virtual revolution in political and the legal
thinking has to be the first small sensible but very difficult step to take. As Neil
Armstrong almost said :
Adversarial Legal Systems in Australia v. Human Rights
Centuries ago the English speaking world inherited English law and its adversarial legal system. Practitioners of this system have historically viewed it as being largely beyond improvement. As long as the general population was kept in a state of freedom from excessive learning this proposition was sustainable. Even today with a better educated population historical inertia assisted by the fact that the English legal system has, in nations like Australia, acquired many of the attributes of a religion, rational discussion of its failings is difficult. To attack the fundamental basis of the system is regarded as heresy.
In an adversarial system truth has no essential central role and judges have wide discretion over whether to admit evidence and to determine how a case runs.
In Australia the Law does not aim to provide a service to the community rather it was established by a colonial overlord class to be the master of the local people not their servant.
The Hon. Justice Jim Spigelman said at the 175th anniversary of the Supreme Court of NSW :
This heritage of course includes many years as a prison colony and genocide of the indigenous people of Australia.
Poverty in Australia is on the increase legal aid has suffered large cuts and defending your basic rights is not easy. More groups of citizens have today drifted into an increasing welfare underclass. Those in power do not wish to see nor hear from such people. This climate does not bode well for the observance of civil and human rights that are called for under UN human rights instruments Australia signed when economic conditions here were more equitable. And even when an abuse is of a very high order the local 'legal eagles' had an answer. When Australia was found guilty in an international court of genocide over its treatment of a whole race of people, their solution was that genocide was not recognised by Australian Law. So it did not exist !
The reality is that courts in Australia do not have to apply statutory law because judges decide what is right or wrong, not legislation enacted by parliament. Judges are supposed to be of the highest ethical and moral standing, and without that attribute other human beings constantly display: prejudice. In reality the fact that judges have prejudices just like other human beings is shown in many legal cases. Australia, by basing a justice system on the discretion of unaccountable unelected judges and not on the enacted law defined by parliaments clearly cannot be called democratic, since the will of the people can be bypassed and ignored. Thus there are cases where people who breach statutory law not only get away with it but are rewarded while the victims pay.
The legal community in Australia like to present their services as providing 'a Rolls Royce system', whereas those ordinary members of the community who have need of its protection over human rights issues may feel that a medieval hay cart on an unstable dirt track better reflects the speed and efficiency of the system, even if its running costs do far exceed that of a Rolls Royce.
The legal system and the courts rely on lawyers to present a case and the outcome depends on the skills and expertise of such professionals. But, legal professionals are not liable for their action in court. It goes so far that a client is even held liable for criminal actions of his/her legal representative(s) even if he/she has no knowledge of such action. Therefore a layperson in Australia to be safe actually needs to acquire the equivalent knowledge of a legal professional in order to be able to instruct and supervise his lawyer.
Should a client discover that his lawyer's advice - on which he based his instructions - was wrong and caused him loss and damage he can lodge a complaint. In the state of New South Wales for example the Law Society has the statutory obligation to watch and control the conduct and practises of lawyers. But the Law Society also owns "Law Cover" an insurance system for lawyers which brings into existence a massive conflict of interest in such cases.
Clients who take action in court against lawyers experience great difficulties in finding a lawyer willing and able to present a case unless large amounts of money can be spent to attract and satisfy a skilled and experienced "lawyer champion" who is able to run a case against the "lawyer champion" of Law Cover.
It follows that only very wealthy people or organisations can afford the huge costs involved in such litigation where the function is the vital one, to the community at large, of defending legal professional standards of competence and probity.
Victims of negligent lawyers who self-represent a claim in court are confronted with the "lawyer champion" of Law Cover, with a closed club of legal professionals and with judges who have wide discretion and are not educated in judging because they are only lawyers who left their profession.
The reality is that many ordinary citizens and small business operators who commonly have most need to defend their basic rights have not the money or the knowledge required to access in a fair way the legal system used in Australia.
Violations by government and government agencies
While Australia has implemented rights provided under the Covenant for some, for example homosexuals, who have organised to ensure this adherence by approaching the United Nations over the observance, it forgets the vulnerable, those without influence, for example its children:
Sydney Morning Herald, Australia, reported on 6 December 1999:
Inconsistent application of the law opens a path to discrimination and corruption when governments and government agencies particularly inconsistently apply laws from a position of power. (e.g. Local Government's planning, building and environmental laws)
A person who is disadvantaged by the non-application of the law by a government
agency is forced to go through the court system to obtain an order to have the law
applied correctly. Cases normally take years and sometimes stretch out for decades
so psychologically and financially destroying almost any plaintiff.
Thus victims of much human rights abuse are simply dispossessed and pushed into
silent poverty due to legal costs and massive legal delays.
The result is that ordinary individuals have no path via the law to defend themselves against powerful abusers of human rights who can outspend them in court.
In order to shield impecunious victims from 'The Justice Game' the Australian government may have come up with a cynical sort of solution via large reductions in the availability of legal aid. Poor and vulnerable victims are thus totally kept out of the courtroom by this measure.
But if someone does get legal aid and so gets into the courtroom a trap is set for the opposing party. In this type of situation the normal 'English Rule' over costs does not apply. Instead the Legal Aid Commission will only pay a maximum of $5,000 towards the costs of the party opposing the legally aided person. This can have the effect of removing the right to an effective remedy for a person opposing a legally aided party.
In general the cost of and methodology used in litigation within Australia makes the contest win or lose, a Pyrrhic victory or economic suicide for most Australians of ordinary means.
Privacy law, defamation law, and even mental health law, can also become very effective weapons available for use by the powerful and wealthy to keep human rights victims silent and discredited.
In the State of NSW mental health laws allow a person thought to be in danger of harming their reputation or financial position to be assisted by police from their home or any other place to a mental hospital where they can be treated with ECT(Electro-Convulsive Therapy , which has been used in some nations as a form of torture, for example in the former USSR) and then placed on community treatment orders. In NSW application of the mental illness weapon appears central to downsizing. Unlike in the USA no protection against such things exists at law for NSW employees and so personality testing can be used to get around anti-discrimination laws.
There is nobody a victim of human rights abuse can approach because on paper these human right violations just do not happen. By official definition they don't exist because the governments say they don't. "Due process" at law is politically correct. Government regulators tasked with providing the public with a path to complain about the actions of judges cannot be questioned about their decisions and do not have to give reasons for finding that a judge acted correctly.
The views of an expert observer
A most respected local commentator in Australia on due process at law from the
vantage point of the public gallery is journalist, author, and editor Evan Whitton, a five
times winner of the Walkley (which is the most prestigious national journalism award)
and Reader in Journalism at the University of Queensland amongst other things. His
two recent books ;
Evan Whitton's interest focuses on the criminal justice courtroom but reports from users of the system seeking to defend their civil and human rights confirm Evan Whitton's researches about the very uncertain nature of due process at law.
The right to an effective remedy
In Australia there is a rule of law which says that everyone should be compensated for the wrong suffered such as to allow the victim to be put back in the position as if the wrong would not have occurred. Such a rule of law is in accordance with human rights. The High Court of Australia in the case Johnson v Perez (1988) 82 ALR 587 ruled:
So much for theory.
Victims of crimes and civil wrongs experience that this rule of law is seldom applied for it lies within the discretion of a judge, and so are awards of costs for running a case.
A court can take the view that the additional costs for highly experienced legal or other professionals should not be paid by the losing party.
Winning in court may mean nothing at all in terms of getting fair redress for an abuse of your human rights that has taken place. For example the case of Barry Hart who was tortured in a mental institution of the state of NSW. 24 years after the torture of Hart he reached the end of legal process in Australia. The legal system comprehensively ensured, via the available judicial discretion, that "the guiding principle in the assessment of damages", as defined in Johnson v Perez (1988) 82 ALR 587, should not apply to Hart. The outcome for Barry Hart is that his mental and physical health has been destroyed, his professional career ruined, his limited compensation distributed between various legal professionals Barry Hart like many others has no further recourse because there is no independent authority, no human rights court, which would provide Australian citizens with a remedy.
ONE VOICE - ONE PEOPLE is an independent, non-party-political, non-profit organisation committed to defend human rights and fundamental freedoms and to contribute to the promotion and advancement of democratic societies, institutions and processes
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(C) One Voice One People. Last updated: March 2000