Updated: Feb 9, 2021
Australia is the country of the ‘fair-go’ where we value equality, respect and freedom. It’s part of our culture and national identity, but crucially, it is not part of our legislature. I was very surprised to learn in my first year of law school that all these values that I have taken for granted aren’t actually protected under law. In fact, Australia is one of the only western democratic countries in the world that does not have a National Charter of Rights. Countries like Canada, New Zealand, the UK, US and many European countries all have some sort of protection for human rights, but Australia is lagging behind. How can this be?
Generally it has been assumed that the democratic model is sufficient to ensure our rights. That if we are unhappy with how the government is using its power, we can just vote them out and start again. Australia’s democracy is strong and stable, but there have been many instances where our notion of a fair go has not been extended to all. Abuses of power have been seen through the White Australia Policy, the criminalisation of homosexuality, the protection of marital rape, the treatment of our Indigenous people and many others.
So no, Australia’s track record has not always been perfect, and those who deny the need for human rights are generally those who have been fortunate enough to never need to think of them.
Enjoying rights to equality and non-discrimination means we can access goods and services, and be employed regardless of our sex, ethnicity or disability. Enjoying our right to health means we can see a doctor and access medical services. Enjoying freedom of movement means that we can take public transport or drive around the country. Enjoying freedom of religion means we can attend churches, synagogues and mosques without persecution. We can have the right to be heard, to stand for election, to get an education. Fundamentally, we can have the right to live a dignified life.
Generally, Australians can enjoy these rights, which is a wonderful reflection of our success. However, they should not be taken for granted. There are still groups in Australia that are vulnerable; such as, migrants who find difficulty getting employed, young people with disabilities being forced into nursing homes with the elderly, and families being separated in detention centres.
There are areas that need work. Our right to be treated equally and be free from discrimination could be strengthened, our privacy laws should be extended and our rights to freedom of association and speech should be enhanced.
What would a Charter look like?
The strongest vehicle for protecting rights would be to enshrine them in our constitution, in a similar way to the US or South African models. This would mean that constitutionally protected human rights would override any state or federal laws that breach it. However, this would require a referendum to implement. An easier proposal is to follow the New Zealand and UK examples through creating a legislative Charter, passed by the Australian Parliament as an ordinary Act.
What this could do would be twofold:
1. It would ensure that government bodies take human rights into account when they develop laws and policies. This would mean government bodies like the Department of Human Services, the police, Medicare and others must consider human rights in delivering services.
2. It would provide the public with more power to take action if human rights were breached. Courts will not be able to strike down legislation, but they will be able to issue a declaration about any laws that have not been interpreted consistently with human rights, requiring Parliament to respond.
It would codify what our fundamental human rights are, which could protect some of the most basic things, such as our privacy and access to services. Some opponents to a Charter are worried that it may be transferring power away from politicians and allowing judges, who are not elected, to decide policy. However, this is not the case. The Charter only requires that governments act compatibly with rights and gives people the option of court action if their rights have not been protected. At the end of the day, an Australian Charter would help to build a culture of rights and create a safety net to rely on to ensure the government will comply with the rules it has agreed to under international law.
However, a Charter is still quite limited. Here in Victoria, the Victorian Charter of Human Rights and Responsibilities requires Parliament to have regard to human rights, but they are still able to declare an Act valid if it is incompatible. Courts can issue a declaration of incompatibility to be reviewed by Parliament, but it does not stop legislation coming into effect. A National Charter would likely be the same, with limited enforcement mechanisms and relatively weak powers. Still, it is a step in the right direction in requiring legislators to have regard to whether their laws are compatible with human rights.
Australia has come close to achieving a legislative Charter. In 2009, the National Human Rights Consultation recommended adopting a model like the one above. The Consultation found after receiving 35,000 submissions that 83% were in favour of an Australian Human Rights Act. After hosting 66 round-tables in 52 locations across the country, the majority of the Australian public were supportive. However, the Rudd government of the day failed to take any action.
Today, the Human Rights Law Centre is running a Charter of Rights Campaign, trying to raise awareness and gain support from the community and MPs about the need for a Charter. If you would like to sign the petition, you can do so at their website: https://charterofrights.org.au/sign-up
We should never become complacent about our rights and our values. We should all have the chance to be treated with dignity and respect and be governed fairly. Communities which understand, value and protect rights are stronger. Implementing a Charter would help to transform our human rights landscape and bring us up to speed with other liberal democracies across the world. At the end of the day, it will serve as an acknowledgement that our human rights matter and are too important to ignore.