Common law fails to protect disadvantaged people

Sydney Morning Herald
15 December, 2008
Letter to the Editor

IT IS extraordinary that any lawyer - let alone retired High Court judges or colourful QCs - can seriously contend that the common law and democratically elected parliaments are adequate to protect human rights. We have had both, for hundreds of years, including the last two decades during which, as federal human rights commissioner, I had the privilege of meeting thousands of our fellow Australians who were homeless or mentally ill.

To assert that the common law protected their rights demonstrates wilful ignorance or perhaps just a privileged existence. The reforms introduced following the national inquiries we conducted on these issues were the result of pressure on Parliament generated by the media, including your paper. But these reforms were based on principles prescribed in international human rights instruments monitored by our National Human Rights Commission - not principles embodied in common law or federal or state statutes passed by our elected representatives.

The much vaunted common law developed functional rules for protecting property, commerce and contract - but from the perspective of the most vulnerable, disadvantaged and marginalised in our community - including the homeless, the mentally ill, indigenous peoples and those with multiple disabilities - the common law was, and still is, an abject failure. Indeed, as we demonstrated in these inquiries, far from being part of the solution, the law was frequently part of the problem.

As for the "sovereignty" of Parliament, democracy is extremely important, but from a human rights perspective, it embodies an inherent paradox. Our elected leaders are there because they have proved their willingness to respond to the priorities of the majority. The vulnerable groups just mentioned are all minorities - and in most cases not politically powerful, or even influential. The idea that a government representing the majority of our elected representatives is generally benevolent may seem appropriate in 2008, but recent history demonstrates its unreliability.

When we revealed the "inconvenient truth" that more than 500,000 of our fellow Australians were affected by serious mental illness, but at least 240,000 were receiving no treatment, neither the common law nor statute protected these people. The scandalous violations of their rights (including hundreds of deaths) were largely the result of government omission, neglect or indifference.

There is abundant evidence that deficiencies inherent in the common law and democracies premised on majority rule mean the most vulnerable in our community do need greater legal protection. The Government is to be commended for according all Australians the opportunity to influence this decision with the announcement of a national human rights consultation panel.

Brian Burdekin

Potts Point

Media articles are posted for the purpose of criticism, comment, scholarship and research under "fair use" provisions and may not be distributed further without permission of the copyright owners, except for "fair use."