The National Human Rights Consultation Committee will report to the Australian Government on 30 September 2009, having received more than 40,000 submissions in the ten months since the consultation process began. It would be extremely disappointing and a testament to the effectiveness of the anti-charter fear campaign if the Committee recommends anything less than a British-style Human Rights Act.
Nevertheless, The Australian has reported that the Committee is ‘poised to recommend a British-style parliamentary committee that will review all legislation for potential breaches of human rights’. The report suggested that the parliamentary committee would exist instead of a charter of rights, not in addition.
If this prophecy is accurate, it would be an enormous victory for Charter opponents, a victory gained in spite of logic, reason and the domestic and international experience. Such an outcome would condemn Australia to remain the only Western democracy in the world without a charter of rights. It would be bad policy, pandering to the fear campaign of those who suffer from a phobia of all things unelected.
I do not suggest that it would be undesirable to form an Australian parliamentary committee similar to the UK’s Joint Committee on Human Rights (JCHR). The JCHR has been a productive and useful part of UK’s human rights model. I do suggest, however, that the success of the JCHR is inseparable from the existence of a Human Rights Act applied by the courts. The JCHR and the UK judiciary are engaged in a constant dialogue that has promoted increased respect for human dignity in all spheres of government.
A mere parliamentary committee, without independent judicial enforcement of a charter of rights, would constitute a wholly ineffective half-way house. It would be an unacceptable policy compromise leaving Australia languishing behind modern democratic standards.
The UK system works precisely because of the dialogue it stimulates between the parliament and the judiciary. The parliament brings its public accountability and broad policy knowledge. The judiciary brings its independence and legal expertise. Moreover, the courts provide an essential mechanism through which individuals can protect their human rights against unreasonable state intrusion (which, far from being undemocratic, is something that empowers people against their government).
Given that charter opponents now recommend a British-style parliamentary committee, it is interesting to note that the JCHR is currently advocating increased human rights protection in the UK. In late 2008, the JCHR recommended the replacement of the UK Human Rights Act with a stronger Bill of Rights. The JCHR expressed a desire to take a leading role in developing international human rights jurisprudence, expanding the capacity of the UK judiciary to interpret human rights beyond the lowest common denominator of Strasbourg decisions and adding new human rights that have arisen in the fifty years since the European Convention was drafted.
The UK Government responded positively to the JCHR report and noted the growing need to ‘correct public misperceptions about the current regime of human rights protection’. The perceptive response of the JCHR provides guidance for how the Consultation Committee should respond to Australia’s fear-mongering charter opponents: ‘The Government should seek to proactively counter public misperceptions about human rights rather than encourage them by treating them as if they were true.’
If this is the view of UK policymakers after ten years of experience with a charter of rights, it is increasingly difficult to understand what the doomsday anti-Charter movement is warning us about. There is no need to take baby steps on this issue; international guidance is already in great supply. The time is now to adopt a federal charter and launch Australia’s contribution to the global human rights phenomenon.
Andrew Vincent is a Monash University law student and volunteer for Liberty.