Democracy Enhanced, Not Diminished

Contrary to what some might have us believe, 1 January 2007 will not, in retrospect, be identified as the date when the corrosion of Victoria’s parliamentary democracy began in earnest with the commencement of the Charter of Human Rights and Responsibilities.  Rather, if we fully exploit the opportunities afforded by the Charter, the Equal Opportunity and Human Rights Commission would argue that we are actually embarking on a path of change that will fundamentally enhance not just our system of government, but our community in general. The Charter is intended to foster a culture of human rights.  A significant dimension of such a culture is the relationship that exists between government and its citizens.  Whilst the core mechanics of democracy rest upon majority rule, we both trust and rely on governments to govern for the benefit of the whole community.  This can only occur when the actions of government are required to be undertaken in accordance with human rights, which provide a framework for assessing and moderating the impact of legislation, policies and practices on the interests of a range of often marginalised groups whose voices can be absent from, or drowned out in, a very crowded public policy environment.

We have well established mechanisms to assess the actions of government in terms of economic impact, regulatory burden and, to a lesser extent, environmental impact.  Such scrutiny is both appropriate and vital, but within a culture of scrutiny it is surprising that some still ask why we need to include human rights – surely the more pressing question is why has it taken us so long to do so?  It is worth repeating that Australian jurisdictions are the last western democracies to adopt comprehensive human rights instruments, despite the review and assessment of similar instruments in other jurisdictions such as New Zealand and the United Kingdom finding they add fundamental value to the public policy process in terms of encouraging durable policy outcomes that add to the cohesiveness of the community.

Of course human rights considerations have not been entirely absent from the Victorian public policy landscape. However, now that human rights form part of the domestic law of Victoria, the human rights discourse can be significantly improved.  By enshrining these standards in law government has adopted a clear and consistent benchmark that will not only inform assessments of government performance, but will also provide a transparent and collectively understood platform for debate and advocacy on issues.  This is particularly significant for individuals and organisations active in lobbying to promote the interests of disadvantaged and marginalised groups.  The Charter can be used to shift the discussion around human rights issues from what is right to what is lawful, and hopefully from what needs to occur to how human rights progress might be realised.

Under the Charter, a further enhancement to human rights discourse is that it can expand beyond its previous, almost exclusive focus on discrimination, to become far more holistic and multi-faceted.  Reducing and eliminating discrimination will undoubtedly be a vital feature of Charter dialogue, and existing mechanisms to address discrimination will be complimented and enhanced by the mechanisms of the Charter, in particular its emphasis on addressing issues pro-actively, at the point of planning and decision making.  However, with its focus on the outcome and impact of policies and practices, tested against established human rights norms, the Charter will also apply and be able to respond to a much broader range of issues, many of which are currently not captured by the often restrictive focus on narrow causative tests that characterise anti-discrimination statutes.

Amongst all the optimism surrounding the Charter there is a need to highlight what may be a self-evident warning – the Charter is not an outcome; it is an instrument.  The Charter provides an armory of formal and informal mechanisms to promote human rights and realise the benefits associated with this.  However, it is up to government in all its forms and the community to understand and meaningfully employ these mechanisms, otherwise the Charter will amount to little more than rhetoric.  Critical to this is the need to inform the general community so it understands the relevance of human rights, and becomes genuinely disturbed by policies and practices that are non-compliant.  Arguably this is the most significant challenge facing all those who are engaged in the Charter’s implementation.

Of course a human rights culture depends on more than the conduct of government.  Its emergence or demise is also significantly influenced by how individuals view and relate to each other.  A range of contemporary issues call into question just how sincere and embedded our community’s perceived commitment to a ‘fair go’ actually is.  If the Charter results in government leading by example, and thereby demonstrating to the community that human rights are important, that they belong to all and their promotion enriches everyone, not just a few, that may well be government’s most important and enduring contribution to the health and well-being of our community.

Dr Helen Szoke is the CEO of the Victorian Equal Opportunity and Human Rights Commission. Matthew Carroll is Manager of the Commission’s Human Rights Unit.