Act for Australia: support the campaign
Australia needs better human rights protection. The Tongan Constitution of 1875 contains more rights than Australia’s 26 years later. By human rights standards, South Africa’s Constitution is without peer, but ‘entrenched’, constitutional bills of rights are not the only way of protecting rights.
In recent years, the UK and Aotearoa/New Zealand have passed ordinary acts of parliament protecting human rights, as have the Australian Capital Territory (ACT) and the state of Victoria. Canada also had a non-entrenched bill which it later upgraded to a Charter of Rights and Freedoms in its Constitution. This example seems a wise path for Australia to follow. A Human Rights Act of parliament would have many advantages for Australia, not the least of which is avoiding the prohibitive difficulty of changing the constitution. (Unlike Canada, Australia’s constitution can only be changed by referendum, requiring a ‘double majority’, that is, a majority of votes in a majority of states, plus an overall majority.)
The excellent new ‘online magazine and policy portal’ New Matilda has taken the lead in a campaign for a Human Rights Act for Australia, an idea whose time appears finally to have come. Many others have championed it, including former PMs Gough Whitlam and Malcolm Fraser, union leaders Greg Combet and Sharan Burrows, and high-profile lawyers such as George Williams, Waleed Aly, Brian Walters, Julian Burnside, Larissa Behrendt and principal author of the draft bill at the heart of the campaign, Spencer Zifcak.
To enshrine human rights in domestic legislation would bring Australia in line with other parliamentary democracies and is no less than a legal obligation in accordance with Australia’s commitments to international human rights treaties. A number of objections to such legal advances are sometimes heard, however. I will address only three, and briefly.
One concern is that a Human Rights Act will erode parliamentary sovereignty and thereby democracy. Some commentators have deliberately misled the Australian public on this point. The fact is the proposed model — similar to that which already exists in the UK, the ACT and Victoria — does not reduce the power of parliament to make and amend law. Rather, it requires legislators to state how new laws impinge on rights and allows courts to question the compatibility of legislation with human rights (as defined by parliament). Thus it advances rather than enfeebles democracy by promoting public, transparent debate between Australia’s institutions of government.
A second point was ably made by Prof. Larissa Behrendt at the Melbourne launch of the campaign. The objection that a Human Rights Act will create ‘a lawyers’ picnic’, puts dislike for lawyers ahead of the rights of the vulnerable.
A related objection is that legal protection of rights would make society unbearably litigious. The experience of the UK, Canada and Aotearoa/NZ since the passing of their human rights legislation simply do not bear this out. There has been no significant or lasting increase in litigation. In fact, it should reduce some forms of arbitration by creating better laws, institutions and public policies, less likely to encroach on rights.
Other concerns you may have might be allayed by reading the FAQs at the campaign site. Read the very readable draft Human Rights Act itself and see if you don’t get a buzz of excitement.
Now is the time to support the campaign. Given the intransigence of the present government, MPs of all stripes are being lobbied to introduce a Human Rights Act as a Private Members’ Bill. Write to Australian Senators and MPs to express your support for such a move.
[…] As Australia’s Human Rights Commissioner, Graeme Innes, says, "The next step will be to incorporate the Convention on the Rights of the Child, and the two Protocols, into Australian law." Australia’s record on enacting international human rights commitments in domestic law is poor. Australia needs a federal bill of rights. […]