Human rights, parliamentary-style

George Williams

The Australian states should not have a US-style Bill of Rights in their Constitution. Many, such as former NSW Premier Bob Carr, have criticised that 1791 law, and rightly so. It gives too much power to the courts to decide difficult social issues, a power that should remain with our elected representatives.

On the other hand, each state should enact a Charter of Human Rights and Responsibilities like that which has been introduced into the Victorian parliament. A law in this form would protect our democratic rights in an ordinary act of parliament.

What is needed now outside of Victoria is debate about whether our basic rights and responsibilities should be set down in a like Charter. NSW Attorney-General Bob Debus has announced that he will put a proposal to NSW cabinet for just such a community-based discussion. This is the right way to start.

"Although we assume that we have many of these rights, such as freedom of speech, few are actually protected by the law and others are scattered across the statute books."

I was a member of an independent committee established by the Victorian government that recommended in late 2005 that the state enact a Charter of Human Rights and Responsibilities. After six months of listening to Victorians of all ages and backgrounds across the state, it is clear that they want their human rights to be better protected. Although we assume that we have many of these rights, such as freedom of speech, few are actually protected by the law and others are scattered across the statute books. While Victorians do not want radical change, they do support common sense reform that will strengthen their democracy and set out their fundamental rights in one accessible place.

To find this out, we took part in 55 community forums and had 75 other meetings with government and community bodies. We also received 2524 written submissions, an unprecedented number for a process of this kind, 84 per cent of which (or 94 per cent, if petitions and group submissions are included) said that the law should be improved.

Many people want to see their human rights better protected to shield themselves and their families from the potential misuse of government power. For even more people, however, the desire for change reflects an aspiration to live in a society that continues to strive for the values that they hold dear, such as respect for others, equality, justice and freedom of speech. They also said that all rights come with responsibilities, including the responsibility to respect other people's rights.

Based upon what we heard, we recommended that the Victorian parliament enact a Charter of Human Rights and Responsibilities. This was accepted by the Victorian government, and in early May such a law was introduced into parliament by Attorney-General Rob Hulls. It has yet to come on for debate.

This Charter will not give the final say to the courts, nor would it set down unchangeable rights in the Victorian Constitution. Instead, the Charter would be an ordinary Act of parliament like the human rights laws operating in the Australian Capital Territory, New Zealand and the United Kingdom.

Victoria's Charter is written in clear language with opening words that set out the community values that underpin it. In this form, it could be used by children in schools and for broader community education, such for people newly arriving in Victoria.

The Charter will also play an important role in policy development within government, in the preparation of legislation, in the way in which courts and tribunals interpret laws and in the manner in which public officials treat people within Victoria. It will create a new dialogue between the community and government from the earliest stages of decision-making to help prevent human rights problems emerging in the first place. It will also make government more accountable to the community it serves.

The Charter will protect those rights that are the most important to an open and free democracy, such as the rights to expression, to association (including to join a trade union), to the protection of families and to vote. These are contained in the International Covenant on Civil and Political Rights 1966, to which Australia has been a party for many years.

These rights could be limited, as occurs in other nations, where this can be justified as part of living in a free and democratic society. This would mean that our elected representatives can continue to make decisions on behalf of the community about matters such as how best to balance rights against each other, protect Victorians from crime, and distribute limited funds amongst competing demands. The Charter also recognises the power of the Victorian parliament, not just to balance such interests, but to override the rights listed in the Charter where this is needed for the benefit of the community as a whole.

The Victorian Charter will include a mechanism for review. Indeed, we should not expect that it will remain unchanged, but that it will be updated and improved with the benefit of experience. The Charter should be the start of incremental change, not the end of it. Such change is needed not just in Victoria but around the nation.


Professor George Williams is Director of the Gilbert + Tobin Centre of Public Law, UNSW. He was chair of the independent Human Rights Consultation Committee, which also comprised Rhonda Galbally AO, Andrew Gaze and The Hon Professor Haddon Storey QC. Their report, Rights, Responsibilities and Respect, is available at www.justice.vic.gov.au/humanrights.


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