Take also the example of the student above, who harrassed other students of ethnic minorities, including drawing a swastika on the Jewish girl’s desk and pulling off the Sikh boy’s turban. That boy has a right to access to education, but the Jewish girl and the Sikh boy also have a right to be free of religious persecution and vilification. Therefore, while the state may have a responsibility to provide this boy with access to education, the student should also have a responsibility not to vilify and persecute students with a different background. Should he be able to be banned from the classroom until he agrees to fulfil this responsibility? The fact of the matter is that he is impinging on all the other students’ right to access to education. The teacher has to spend extra time disciplining him and preventing him from harming and vilifying other students, and less time on teaching other students the information that they need to know.

I am discovering during the writing of my thesis that I have a constant query of academic pieces, namely, “That’s all very nice in theory, but how does it apply in practice?” The same is true of human rights: just how does one apply them in practice?

What about something like “a right to freedom of political association”? Should we just let crazy right-wing groups associate freely and possibly cause harm to ethnic minorities in our society? Or should we try to put some controls on these groups?

Or let’s keep running with the example from above. Say we adopt a rule that a defendant must have a “fair and impartial trial”. How would you apply that rule to the situation where a self-represented defendant wishes to cross-examine a rape victim in person? If a barrister starts attacking the sexual history of the victim during cross-examination, and it is really just trying to drag the victim’s name through the mud, I think a judge can query the relevance of the line of questioning and ask the barrister to desist. But if you have a self-represented litigant, it’s a lot more difficult; you can’t expect them to have the same kind of knowledge of what’s appropriate, and you can’t force someone not to represent themselves.

How would you apply that rule in the circumstances?

The other option is to say “People will always have a right to cross-examine witnesses personally no matter what”. That’s one option, but I don’t feel comfortable with this where a litigant in person who is accused of rape is cross-examining his witness aggressively.

Well, a simplistic (but possibly correct) answer is that when two rights conflict, they cannot both be ‘rights’ in the truest sense - I feel that we must work from the assumption that it is possible to describe a set of rights which are internally consistent with one another when applied across a group of individuals.

So, in this example, perhaps the problem is an over-literal enunciation of the rights of the accused. A more sensible right would be the “right to a fair and impartial trial” (which in fact would bring into play the common law in terms of interpreting what a fair and impartial trial is). By making the right less prescriptive (i.e. not the “right to personally cross-examine witnesses”) it is possible to avoid conflict with other rights, such as the right to access to justice.

This also highlights the many issues which arise when different classes or categories of right collide - e.g. negativist versus positivist.

I would suggest that not only are internally consistent sets of rights possible, but the fact of internal consistency points to universality. I.e. if we can describe rights in a non-conflicting way, we are describing genuinely ‘universal’ rights.

My comment about Hicks’ situation being slippery arose from the fact he wasn’t in either the US or Australia when captured, and therefore his status was somewhat complicated. He wasn’t a member of a foreign army strictly speaking - I’m not exactly sure what he was. Therefore it’s difficult to say whether he was an enemy combatant or not. And then there’s issues of jurisdiction. Not intended to say anything about him personally…

And, with respect, many of the above remarks demonstrate the latter attitude:

“the girl’s human rights should be more important than the elder’s”

“It would also be nice if someone remembered the 2 kids he abandoned and has left the taxpayer to support.”

“it’s a bit of a slippery area”

“I tend to think this is a human right that should be denied on the basis of the trauma to the alleged victim.”

Etc. - these remarks miss the whole point of equality before the law, which is that we agree on a set of objective standards and then apply them objectively to avoid the inevitable clashes between different (subjective) views on what is “right” or “wrong”. Pete M would shoot Hicks on sight and punish him further for the (irrelevant) fact that he abandoned his kids. I totally disagree with both of those propositions - how do we settle who is right? We agree on objective laws, and when someone is said to have broken them we put them on trial and determine objectively and fairly whether they have or have not broken them.

So, for the millionth time: the issue with Hicks is not his guilt or innocence, it is the fact that his guilt or innocence HAS NEVER BEEN TESTED BEFORE AN IMPARTIAL COURT USING ACTUAL EVIDENCE. The absolute softest I have ever seen anyone describe Hicks is as someone who made a “mistake”. I have never seen anyone seriously suggest that he was a good bloke or that he made an intelligent or sensible decision, and I would be interested to see any evidence that any significant proportion of people believe that.

Likewise, if this elder has broken Australian law then hold a trial and make a finding in law. Don’t let your emotional response overwhelm you and convince you that one person’s rights are more important than another’s.

And as for the rape/cross-examination issue - well, once again, this is an issue of definition of the content of human rights and it seems to me that to find that the right to personally cross-examine a victim who is also a witness is not one which necessarily exists in the basic set of rights which we can generally agree exist (or should exist) in the west.

Pete M, it’s scarcely worth responding to some of the nonsense in your post but:

- Haneef’s visa was invalidly cancelled, therefore his detention pursuant to that cancellation was also invalid. In addition there is a very real question as to whether Minister Andrews was guilty of abuse of process in the way he went about cancelling Haneef’s visa.

- ASIO did illegally detain two men according to the NSW Supreme Court: http://www.theaustralian.news.com.au/story/0,,22761252-2702,00.html?from=public_rss - but I suppose that’s fine because they were accused of terrorism and therefore automatically lose all of their rights, correct?

- I did not say ASIO detained Hicks. Australia cooperated in his continued detention, however.

- If I accused you of some random crime and then, with the full authority of the United States and Australia, kept you shackled in a cell for five years and then offered you the choice of another fifteen years of that or ‘confessing’ and being released, which would you choose? It’s just moronic to assert that Hicks confessed in any legally relevant sense. Please answer the above question, I really want to know what you would do.

It is beyond me why those who are most vehement in their defence of western ‘values’ from the evil hordes of terrorism are the ones who are the most eager to impose third world legal standards in our own country and thereby do the work of the terrorists for them. After all, they hate our values and freedoms, right? So why do you want to throw those values out the window? The only way to really fight terrorism is to strengthen, not destroy, the freedoms that we have fought for over the centuries in Britain, France, the United States, and now apparently Australia against those in our own ranks who would take them away.

I certainly agree that the girl’s human rights should be more important than the elder’s, but obviously, the trial judge believed the balance lay the other way.

In terms of the US treatment of Taliban fighters, I don’t think incarcerating these fellows without charge did any good. Indeed, it just gave terrorist idiots another “excuse” as to why the West should be blown up, and what is more, it was rank hypocrisy on the part of those who were trying to enforce democracy, because such actions were not according to the rule of law.

I think being locked up for 6 years without trial would be terrible. If I didn’t have a family to live for, I’d almost rather be shot on the spot (seriously).

That being said, I have very little respect for someone like Hicks who swallows Al Qaeda/Taliban rubbish. I’ve written a blog post on a piece which seeks to explain how second and third generation men of Pakistani/Indian background may have been drawn into radical Islam, but it seems to me that those reasons don’t apply to Hicks. He seems to me like a stupid young man who just wanted an excuse to hurt people and lord it over them (particularly women). His letters home give a most unattractive picture:

One reward I get in being martyred I get to take ten members of my family to heaven who were destined for hell

But first I also must be martyred. We are all going to die one day so why not be martyred?

As a post script: If I do get martyred that is what I want. If Dad rings and says that, you know that your son is dead, say congratulations. Allah will help just let him know that you are happy about it.

The only true Muslims are those fighting.

I am now very well trained for jihad in weapons some serious like anti-aircraft missiles. The West is full of poison.

The Jews have complete financial and media control many of them are in the Australian government.

Doesn’t mean he should be treated without due process, but to my mind, he shouldn’t be given the celebrity status which some sections of the media are giving him at the moment.

ASIO never detained Hicks. They interviewed him while he was in custody of the US govt.

Hicks was never illegally detained - he was captured in a declared war zone as an enemy combatant. You need to look up the Geneva Convention on mercanaries and see how he should have been treated (ie shot without trial), compared to what he was given (ie celebrity status amongst the moist left). I’m all for having him tried fairly, just remember he pleaded guilty, and his letters home to dad certainly paint his story better than anyone else.

Hicks is a terrorist - period. He should be closely watched until he no longer wastes oxygen. (remember 2 other freed gitmo fellows blew themselves up on 7/7 killing 2 aussies). It would also be nice if someone remembered the 2 kids he abandoned and has left the taxpayer to support. I’m sick of him being used as a flogging horse when he actually got much more than he ever deserved.

That said, it does seem to be a rather immense task to come to an exhaustive list of human rights. While we all agree that inalienable and necessary rights exist, we can’t seem to decipher as a community where these rights begin and exist. The old adage, “All men are created equal” is a starting point, but past that we seem to falter in the face of real life and an amaranthine scope of cultural diversity.

In regards to the actual legislation of rights in your case, I still can’t help but feel that this is a positive step. Certainly there will be room for revision, and the effects of this may not be all constructive. However, the fact that this step is even being taken is beneficial to progress society into change, and it pushes us to reflect upon human rights and how we might evolve our laws concerning them even further. Optimistically, anyways.

One might also think it their inalienable right to commit mass murders on another group through “tradition”, but we as a species have begun to see acts like this as barbaric on a global scale.