Common law fails to protect disadvantaged people
December 15 2008, SMH
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
http://www.smh.com.au/text/articles/2008/12/14/1229189441654.html
1 response so far ↓
Joy Farquhar // December 17, 2008 at 9:44 pm |
So true!
Democracy at its purest application inherently supports the interests of the majority.
Yet the disabled and disadvantaged amongst us are in the minority and often not able to speak for themselves.
With increasing research, an understanding of brain disorders caused by anatomical and physiologic changes to the brain, like schizophrenia, stroke, post-infection meningitis, traumatic brain injury, we are finding that insight is a major component to improved outcomes. These outcomes can only be achieved with adequate support systems. Typically 50% of those with a major mental illness are not compliant with the treatment plan. If one person, one person, … can find a way to relate and build trust and encourage the person to follow the treatment plan, the percentage of success changes from 50% to 97%! ( See http://www.xavieramador.com/books/i-am-not-sick-i-dont-need-help/)
You notice, I wrote, insight, not recovery from denial. 50% of those with brain disorders do not have the capacity of insight. Xavier Amador’s research group showed stroke patients who believed they could lift their affected arm to move an object, and became paranoid when the research pointed out that the item had not been moved.
This reality leads to the patients not protecting themselves, including driving and causing accidents, and staying out in the cold, and not eating. This reality leads to avoidance of the usual support systems like family and friends. It leads to avoidance of human contact.
Those with disabilities have huge barriers to their recovery, both internally, and the external world. Some breakdown in barriers cannot be legislated, BUT MOST CAN.
The humane society cares for this portion of the population. The government has a role of legislating to eliminate barriers, see http://www.ada.gov/. The government has a responsibility to fund the organizations who provide services.
Even if those with these disabilities are in the minority, many people are marginalized. The effect that has on the whole is huge. Well people with disabilities, are can be highly functional.
It is past time to take action.