Imagine if we could get all of Australia to start a slow hand clap. And then, over the top of it, comes a plaintive chant ‘Why are we waiting?’. It probably wouldn’t be long before it collapsed into a national Mexican wave (clockwise?), but before the nation, inevitably, turned to mindless entertainment they would have made a point: stop procrastinating and just do it. Enact a charter of rights.
Consultations, discussion papers, roundtables, workshops, inquiries, reports and summits. What government baulks at, at the very least, volunteering that it will comply with international human rights standards? Only the Australian government it seems. Why the timidity, the apprehension, the hesitancy, in declaring – again at the very least – ‘we undertake that the laws, policies and practices that govern Australia will not breach your human rights’?
In a time of leadership by opinion poll, the fear of backlash is palpable. Business may not like it. Faith-based groups may not like it. At least one media organisation may not like it and, worse, may adopt an editorial policy that is consistently opposed to it.
While national leadership fails, the states and territories are forging ahead, leading us to a situation where various governments of the federated provinces recognise and guarantee the human rights of their citizens, but the government of the federated nation does not.
We live with, and seem to accept, human rights violations by government. Even if we were to say ‘Enough Indigenous disadvantage, enough police and security powers, enough limits on the franchise, enough work ‘choices’, enough detention without trial, enough fortress Australia, enough discrimination, enough homelessness, enough youth suicide’ and so on, there is no standard against which the policies and practices of government can be assessed.
In the years between elections, when representative democracy is in the rigid grip of party obedience and news is filtered through the colour and lights of a trivialising media, government accountability is in limbo. Even at elections the battle is fought on memories of – and spin on – recent events.
But the conservative nature of Australians and their leaders, compounded by the mean inwardness of vision encouraged by national policy over the past decade, together make it hard to get anyone to take seriously the need for strong leadership to address the endemic transgression of human rights in Australia. ‘Best leave well enough alone’, ‘Don’t rock the boat’, ‘It’ll be OK’, and, most insidious, the now respectable ‘I’m OK’, all deflect responsibility for holding government accountable for its conduct.
With this licence to govern as it pleases, is it surprising that no government would hurry to volunteer to subject itself to a regime that exposes its every act to scrutiny for international best practice?
Prominent charter advocates are in fact asking for little more than a system of scrutiny, and perhaps the power that exists in Victoria to mount a court challenge against a public authority’s decision for human rights non-compliance. But charter advocates are at pains to avoid suggesting that a person might be compensated for a government’s breach of their human rights, although Tasmania is considering just that, and the UK’s Human Rights Act goes that far. Instead, charter advocates are promoting a damages-free ‘dialogue’ model of human rights which relies principally on education, and the incremental persuasion of reprimand by the courts, to bring about government compliance with human rights.
Designing a human rights charter does not, however, involve an either/or decision: education, and winning hearts and minds, are necessary to achieve human rights compliance, but they are consistent too with sheeting home responsibility for wrongdoing, and making government face the consequences – and costs – of its failure to protect its people’s human rights.
It shows the strength of the anti-charter lobby that charter supporters must not only promise not to expose government to liability, they must promise too that a charter will not threaten parliamentary sovereignty. This is an unnecessary defence against a specious and distracting attack: a charter that is the product of parliament, even a charter with teeth, can be no more a threat to parliamentary sovereignty than, say, anti-discrimination law. Opponents of a charter can take heart from the unhesitating speed with which the previous government, in implementing the NT Intervention, by-passed the race discrimination restriction that a previous government attempted to impose on federal laws.
Earlier this year I mused on what I would do ‘If I were Attorney-General’ (HRLRC Bulletin Vol 21, Jan 2008, p 20); I said that I would commit the government to be bound by human rights standards in legislation and policy, and that I would ensure that government compliance would be justiciable. I asked, rhetorically I thought, ‘how otherwise can our commitment to human rights be credible?’. I didn’t say that I would conduct national consultations to see if even non-justiciable human rights are a good idea. Government compliance with human rights standards is not novel, let alone radical, and it is a policy position that a government ought put before and debate in parliament.
The government’s determination to not make a decision itself and take it to parliament is bemusing, especially as it need only implement the established model that has ruffled few feathers in the ACT and Victoria, and that Fred Chaney’s committee has recommended for Western Australia. There is no good reason to consult again. Four separate recent inquiries and reports in Australia have canvassed expert and public opinion on questions such as ‘which rights’ and ‘what model’.
But on 10 December this year (International Human Rights Day), in a gesture that is as ironic as it is intentionally symbolic, the federal government will propose spending time and money on creating another forum for charter arguments. The debate will take place in a vacuum: there will be no model that is endorsed by the government and can be described and attacked and defended. Rather, the consultation will continue a general free-for-all, for-and-against human rights debate that will not educate people, but will polarise and alienate them.
If the government must consult rather than use the parliament for what it is there for, then it needs to show the way, and say: ‘Here is a charter, what do you think of it?’. Asking ‘Well, where shall we begin?’, abdicates responsibility for leadership; it is not good policy, even if the government believes it is clever (defensive) politics.
One legacy of a national human rights charter could be that it sets minimum standards for federal, state and territory anti-discrimination laws. In light of the longstanding status and broad coverage of those laws, any new ‘minimum standard’ should be unremarkable. But we might need such a standard, and bemoan its absence, if current proposals to harmonise anti-discrimination laws lead to compromising at the lowest common denominator.
As a national code of regulation, Australia’s anti-discrimination laws are inconsistent and confusing, especially for employers, but harmonising the laws must not lead to the same concessions to good policy and practice that the previous government perpetrated when it enacted the flimsy Age Discrimination Act. Downgrading our anti-discrimination laws is only an example of where law and policy could go unless the federal government shows a strong, public and principled commitment to human rights compliance, of its own accord, without asking for permission.
Simon Rice is Director of Law Reform and Social Justice at the ANU College of Law.