Menzies has a contemporary echo. In early 2000, Prime Minister John Howard stated on ABC Radio’s AM program that “Australia’s human rights reputation compared with the rest of the world is quite magnificent.” In saying this he expressed the commonly held view that our basic rights are well defended.

Of course, in the main, this is correct. We have much to be proud of in what Australia has achieved and in the way that many rights are protected. We are also fortunate that the rule of law is firmly entrenched in our political culture, and that we have an independent High Court.

Despite this, Australia has a human rights problem. There are simply too many examples of the system failing to protect people from violation of their fundamental rights. Indigenous people continue to die many years younger than other Australians. Until recently, children seeking asylum were held in detention in inhumane conditions that caused many to become mentally ill. Freedom of speech has been wound back through the banning of books and new federal sedition laws.

Today, there remains a gap between law and justice. As Brian Burdekin, a former Australian Human Rights Commissioner, has stated: “It is beyond question that our current legal system is seriously inadequate in protecting many of the rights of the most vulnerable and disadvantaged groups in our community.”

While Prime Minister Howard recognised that “[w]e’ve had our blemishes and we’ve made our errors,” the reality is far worse and reveals a longstanding weakness in our democratic structure. Australia is out of step with comparable nations such as Canada, New Zealand and the United Kingdom. We have fallen behind.

I suggest below just two areas where the legal system is broken and should be fixed. The list could be much longer. For example, I could also point out where the law has failed vulnerable children or the mentally ill or where freedom of government information laws mean the opposite of what they suggest.

First, we need to recognise that justice is denied to those who cannot afford it. Long standing cuts to legal aid and too few community legal centres mean that people often do not get their day in court. What is the point of a legal system if those in need cannot access it?

Even where someone gets to court, they may not get a fair hearing. Many, often desperate, people are forced to appear in courts without legal help. Judges do their best, but a case in which one side has legal advice and the other does not is stacked one way.

David Hicks also needs to be given a fair trial or returned to Australia. Although an Australian citizen, Hicks has been held at Guantanamo Bay, Cuba as an ‘unlawful combatant’ for more than five years. This has occurred with barely a murmur of protest from the federal government.

Hicks has not been tried and has been kept in conditions worse than would be expected in Australia for the worst convicted criminals, including at times solitary confinement for twenty two hours a day. His case is an affront to our commitment to the rule of law and to the idea that every person should be treated fairly.

Australia needs a national law that protects citizens’ rights from the government. Australia is now alone among all democratic nations in not having a national charter of rights or human rights law.

Australia is the only
democratic nation without a
national charter of rights.

There are signs, at least in this area, of change for the better. In 2006, Victoria enacted a Charter of Human Rights and Responsibilities. It is an ordinary act of parliament that protects civil and political rights that have broad popular support. It is a safe model that a federal government and those of the other States could follow.

Australian law needs change. The costs of not doing so are high. Without reform, a number of injustices, both large and small, will continue. This year ought to be the year that we get the human rights law reform agenda back on track.