It’s time: Progress Does Not Need To Wait On Constitutional Change

It’s time: Progress Does Not Need To Wait On Constitutional Change

The Human Rights Law Centre recently launched which feature a series of Guest Blogs. This is the first. The question of Australia’s deficit in human rights protection is live and urgent. Progress is happening but we need more soon.

When the Rudd Government, finally responding to the Brennan Report on the National Human Rights Consultation, decided to reject its key recommendation for an Australian human rights act or charter, many of us were severely disappointed. Brennan had documented massive support for a human rights act. This support was from people, such as those with disability or Indigenous Australians, suffering serious damage to their own rights. Support, reinforced by strong evidence, also came from hundreds of non-government organisations that work on a daily basis with individuals whose rights are transgressed by government laws, polices and processes.

There was to be no Charter at this stage but all was not lost. Attorney General Robert McClelland proposed a “Human Rights Framework”. This would include funds for human rights education and legislation to improve parliament’s scrutiny of human rights and ensure that all laws reflect Australia’s commitments under the seven major international rights treaties. The education funds have now been allocated. It is to be hoped the scrutiny legislation will be passed soon, with cross party support.

The Framework also promised greater domestic and international engagement on human rights. In pursuit of this promise the National Action Plan, NAP, is being developed with extensive participation. A welcome indication that the government is serious about the NAP is its response to the recent Universal Periodic Review exercise. The UPR is a UN based process whereby the country under review submits its human rights performance to assessment by other UN members. The Australian Government cooperated openly and actively with this assessment and is now giving serious consideration to the 145 recommendations made by 50 UN member countries.

The report found that Australia, as would only be expected from a robust, wealthy democracy, has in general a strong human rights record. A number of key areas however have been put in the “can-do-better” category. According to the UPR report, Australia needs a human rights charter. Mandatory detention of asylum seekers, Indigenous disadvantage and the absence of same sex marriage rights were also highlighted for action. In each of these areas, progress does not need to wait on constitutional change, or even major legislative reform.

The parliament has the power to abolish mandatory detention. Will this happen? For a long time now debate in parliament and in the community has been extremely polarised. Elements of the media use public ignorance to whip up fear. Supporters of an end to mandatory detention take some heart from the Gillard Government’s improvements in detention conditions, but we need more vigorous advocacy, with the Government, the Opposition and the media.

Same sex marriage rights already attract substantial community support. Eventually as that support grows, parliament will respond. When parliament decides to reflect these majority community expectations, simple amendment of the Commonwealth Marriage Act will achieve the objective.

Indigenous disadvantage is currently addressed through commonwealth funding of education, health and community projects. More must happen and more effectively. Indigenous leadership and views must play a more powerful part in all decisions.

The question of constitutional reform here is under active consideration with a designated body consulting the community about including specific Indigenous rights in the Constitution, at least by way of recognition in the Preamble.

We are on a tight timetable. The Attorney General is to give the formal response to the 145 UPR recommendations by this June. In the long run change will come from the people, but over the next few months we must act to make sure all legislators are informed of the true extent of voters’ support for these improvements.

Susan Ryan AO is Chair Australian Human Rights Group