Just over a decade ago, Victoria started its journey towards formal rights recognition. Through a widespread consultation process – not unlike that subsequently conducted at a Federal level – Victorians expressed a firm belief that our entitlements and obligations at international law were worth articulating; that they should shape the way in which the population interacted, both with each other and with the state.
A careful process of legislative development followed, with the ultimate decision being that, as civil and political rights were the least contentious and best understood in the public domain, these should be the initial priority. A review was scheduled to follow at a later date. Accordingly, in 2006, Victoria followed the ACT’s example and became the first Australian state to enact a legislative Charter of Rights and Responsibilities, with a range of mechanisms, including the Human Rights Law Centre, in place to support it.
Despite gloomy forecasts from various quarters, including some pockets of the legal profession, the sky did not fall in. Activist judges did not storm the barricades, looking to wrest power from a jealous parliament. Hardened criminals did not flood the streets, having used the Charter for nefarious gain. Nor was that mysterious ‘silent majority’ suddenly oppressed by the rights of smaller and apparently noisier groups.
In fact, nothing especially dramatic happened at all.
Yes, the reach of the Charter was tested in some important court decisions, and I hope that this continues to be the case. For the most part, however, the real impact over the last eight years has been felt in quiet, everyday things – actions and decisions by policy makers and service providers alike which have moved the rights of community members from the periphery to the core and, in doing so, made a difference to individual lives. It has also been felt in the dialogue created between the judiciary and legislature – a process of checks and balances that compels government to contemplate the ways in which power is genuinely felt.
In other words, the Charter has achieved a shift in the way that public institutions work, building consideration of rights into each determination and making them an essential, rather than a luxury item, in the business of doing government. The existence of the Charter does not guarantee that every right will be observed every time, of course, while even its own future has sometimes stood on shaky political ground. Nevertheless, I believe that Victoria can now lay better claim to a human rights culture – one which holds a mirror to our shared humanity and comes closer to the forms of recognition which exist elsewhere around the globe.
What would recognition of this kind mean at a federal level, however? Certainly, the consultation process led a few years ago by Father Frank Brennan revealed a similar commitment on a national scale as was reflected in the Victorian experience. Yet ultimately government shirked at the final hurdle, opting instead for a policy framework which, though comprehensive, fell considerably short of the available potential.
This potential now seems even further out of reach. Recently, the current Commonwealth Attorney-General – the nation’s Chief Law Officer no less – attempted to pit the right to free speech or, in his words, the ‘right to be a bigot’, against the rights of others to be free from discrimination. Meanwhile, a young man detained on Manus Island under the official watch of the Minister for Immigration was denied adequate treatment for a cut on his foot and, left to succumb to infection, ultimately succumbed to death.
These scenarios imply that Australia accepts the observance of some rights to be less important than others. Arguably, examples like these would be unthinkable if Australia had a better developed human rights culture – one in which rights were not seen as something to be asserted by the affected individual once they were violated, but considered at the outset in every decision along the way. A rights culture supported by proper legislative recognition would not pit one right against another, but instead recognise that all have equal value and must ultimately be appropriately balanced. Such a culture would also ensure that the value of quiet, everyday things – like adequate treatment for a cut foot – was observed as a matter of course.
Australia has a longstanding record of promoting human rights on the international stage. We do so at a diplomatic and economic level, often to great effect. Yet these calls will fail to ring true while we struggle to acknowledge or fully comprehend the meaning of rights at home. Victoria’s journey to rights recognition is far from over, certainly, but its experience has a lot to offer the national agenda. So does the expertise which has developed at the HRLC, as well as the ongoing consideration of rights that this and other organisations justifiably demand. It is well past time that this knowledge was applied on the national stage – that we stopped viewing rights as an added extra or even sometimes as an impediment – that, instead, our shared humanity was perceived and understood in every context, every person, every single time.
Rob Hulls is Director of the Centre for Innovative Justice and was Victoria’s Attorney-General between 1999 and 2010.