House of Representatives- Charter of Human Rights

In this year’s budget, the Rudd government provided for a national consultation on the recognition and protection of human rights and responsibilities. This will fulfil Labor policy, and it is particularly appropriate that this provision be made this year, which in December will mark the 60th anniversary of the Universal Declaration of Human Rights. That declaration is part of Labor’s human rights legacy because of the large part played in its drafting by HV Evatt, later Labor leader and then President of the United Nations General Assembly.

In this year’s budget, the Rudd government provided for a national consultation on the recognition and protection of human rights and responsibilities. This will fulfil Labor policy, and it is particularly appropriate that this provision be made this year, which in December will mark the 60th anniversary of the Universal Declaration of Human Rights. That declaration is part of Labor’s human rights legacy because of the large part played in its drafting by HV Evatt, later Labor leader and then President of the United Nations General Assembly.

The national consultation will ensure that all Australians have the opportunity to speak and be heard on the rights we value, the rights we cherish and the rights we want to protect. The consultation will build on the strong calls made at the 2020 Summit held here in April for an Australia where human rights are better protected and respected. These calls were made not just in the summit’s governance stream but also in the security, Indigenous and community streams. When it is held, the consultation process should be as broad as possible, asking open-ended questions which encourage free and open public debate. The thorough community consultation in Victoria which preceded the charter of rights enacted there in 2006 is a good example of the type of consultation which is required.

When the consultation is held, I hope the debate will not be dogged by some of the baseless myths that have been spread in recent years about a charter of rights. These myths include arguments like ‘there is no need for it’, that a charter of rights usurps parliamentary sovereignty, that it gives power to unelected judges, that it is constitutionally impossible or that it will encourage litigation. This consultation should be conducted without these uninformed and emotional arguments, which can be quickly dispelled.

Blindly asserting that there is no need for human rights protection pre-empts the very debate which the consultation is for. We have only to consider the history of injustices in our country, which are contrary to the fundamental human rights of women, Asian people, homosexuals, religious groups and Aboriginal peoples—or the more recent mistreatment by detention of refugee children by the Howard government—to understand that there is a need for some protection of human rights. A legislated charter similar to the model adopted in the Australian Capital Territory, Victoria and the United Kingdom would at least ensure consideration of basic human rights.

The idea that a charter of rights would give too much power to unelected judges is also hollow. We trust our judges to make countless difficult decisions in criminal law, in family law and in all areas of life. We must trust our judges to stand between citizens and government. It is a strange criticism indeed to suggest that there may be some danger in involving judges in deciding whether fundamental rights have been breached.

There is nothing constitutionally impossible, and certainly no loss of parliamentary sovereignty, with a legislated charter of rights. The Victorian model does not give power to courts to override laws made by parliament. If courts find an inconsistency between those laws and fundamental human rights, the inconsistency is communicated to parliament, which has the final say. That is the model used in the United Kingdom and it has been found to be a workable model which has certainly not led to the suggestion that parliament has in some way surrendered its sovereignty.

I hope the national consultation does lead to a legislated charter of rights. If it does not, the consultation will still serve a useful educative purpose. As Labor’s national platform states, ‘An awareness and understanding of the human rights enjoyed by all Australians is essential to their maintenance and protection.’