The legal system had forsaken Australia’s mentally ill and it was a disgrace to the nation, according to Australia’s Human Rights Commissioner, Brian Burdekin.
“”The common law, our democratic institutions and our industrial mechanisms have failed the mentally ill,” he said.
The mentally ill and homeless suffered systemic and institutionalised discrimination. Nearly 80,000 mentally ill young people “”have no facilities and many take their own lives”. Of the tens of thousands of older people wandering the streets of our cities, more than 15 per cent were mentally with no care or treatment. The were abused and exploited and not protected by our legal system. Up to 70 per cent of old people in nursing homes suffered dementia. The homes were not designed to care for them. Many were routinely over-drugged as a management tool, not for treatment.
Mr Burdekin brought a practical light to the question of human rights in Australia which is being debated at a conference at the Australian National University’s Centre for International and Public Law.
He cited a case where 700 mentally ill people were being served by one general practitioner.
Mr Burdekin, who has been commissioner for five years has been inquiring into the rights of the mentally ill in Australia for two years.
“I make no claim at all to being learned in the law,” he said. “”But I do claim to know what is happening to the homeless and the mentally ill on the streets of our major cities. And what is happening is a disgrace to this nation and to our profession.””
He cited a damning case of misallocation of money in Victoria. in 1980 a mental hospital in Ballarat had 1000 patients and 650 staff. Ten years later three-quarters of those patients had been put out to the community, which could neither cope with them nor treat them. Still 650 staff treated 250 patients. A year ago 450 staff were treating 160 patients.
Of $20 million spent at the hospital, 75 per cent of the patients went into the community but only 1{ per cent of the resources.
Mr Burdekin, while highlighting the plight of the mentally ill, was surrounded by some of the best legal minds in the country: professors, judges and practitioners in the private and public sector. He sought their help for better treatment for these people.
Though a Bill of Rights would not solve everything, it would be a great step forward, he said. It was essential to put in place machinery to enforce a Bill of Rights so it was accessible to those most in need of protection.
Australia was out of the international mainstream in not having a Bill of Rights. Even Britain had one with the European Court of Human Rights. The successful appeals by individuals against the British Government and British laws showed how the common law and the Westminster system was not a guaranteed that human rights would be protected.
Australia’s recent accession to the first optional protocol of the International Covenant on Civil and Political Rights was not a substitute for our own Bill of Rights. International enforcement was too costly and had too much delay.
But it would highlight deficiencies in Australian law. Tasmania’s laws criminalising homosexual behaviour were being challenged under it.
“”Australia has no option but to make the embarrassing admission that no domestic remedy (to strike down the law) exists,” he said.
“”It is a demonstrable fiction that Australian law, much less Australian practice, fully complies with any of the human-rights instruments to which we are committed in international law.”