A Charter of Human Rights is a step - not a leap - in the right direction

06/03/2006

by Dr Helen Szoke
Chief Executive Officer
Equal Opportunity Commission Victoria
6 March, 2006

It is understandable that the proposal to introduce a Human Rights Charter into the Victorian social and political landscape has provided opportunities for people who have passionate views to express themselves (see for example, the views of Babette Francis of 1 March 2006 on this page). This is positive!

To date discussions about Human Rights have existed at the margins of mainstream public debate.

There have been some notable recent exceptions such as the debate about access to RU-486 and the detention of people without trial in the war against terror.

However, whilst I applaud the debate about the Human Rights Charter, we must ensure that truth and accuracy are not casualties to the passion that commentators feel about specific issues.

A Victorian Human Right Charter is not designed to resolve the intractable moral issues of our time, including the right to life and abortion. This much was acknowledged in the final report of the committee established to consult with Victorians on the desirability and feasibility of a Human Rights Charter. It is the reason the committee concluded in its report that it is only for the purposes of the Charter that the right to life is defined to apply to a person from the time of his or her birth. Representing the Charter as somehow cancelling the legal rights, not to say respect, that is accorded to the unborn foetus or embryo is simply misleading.

Community attitudes on this issue are too complex and deeply-held to leave their resolution to a simple statute of parliament. Issues such as the right to life and abortion are best resolved – if they need to be resolved – by votes of conscience and the open and rigorous community and parliamentary debates that precede and inform those votes.

However the proposed Victorian Charter would provide clear signposts to rights such as freedom of speech, freedom of movement, to a fair trial, to equality of treatment, to property and so on. These are the human rights that Australia has progressively agreed to uphold as a member of the international community and that provide a blueprint for a civilised and compassionate society. Whilst Australian governments have incorporated many of these rights into the machinery of government, or stumbled across them through judge-made law, many remain reliant on the good faith invested in government to do what is right and fair. Compared to other areas of tightly, some would say over-prescribed areas of government oversight – such as tax and the criminal law – Human Rights receive very little attention indeed.

A Human Rights Charter is consistent with good and efficient government. Under the proposed Victorian Charter model, government and the courts would be required to predict as best they can the impact of proposed legislation and policy on our Human Rights at a very practical level. What does this mean? It does not mean that government can transfer funds from meritorious programs and services and use these to pursue phantasmal rights. It should mean that where a decision, law or policy is likely to affect, say, a child’s right to learn their parent’s language in a classroom, or the ability of a person with a disability to cast their vote on election day, something practical is done about it, something, perhaps, that saves the public’s money in the longer term. This is because the Charter requires government to anticipate issues and avoid direct collisions with peoples’ Human Rights and the litigious, not to mention personal and social, consequences of those collisions.

The fact is that Charters of Human Rights tend to operate in a low-key, almost invisible fashion. This is not such a revelation if we think about the routine transactions most of us have with government and the “guiding hand” of Human Rights on those: I have the right to equal treatment by government irrespective of my race, age, or disability; I do not expect the government to monitor my telephone calls, or to defame my reputation, or to stop me meeting with my local community group or club. These examples are all linked to rights protected under the proposed Victorian Human Rights Charter, namely, the rights to equality before the law, to privacy and reputation, and to freedom of association respectively. If a Charter of Rights were put in place, most of us would not – thankfully - notice its operation until some attempt was made to remove or undermine a Human Right.

The Charter model proposed for Victoria contains the ingredients necessary for a coherent, safe community well-informed of their human rights and responsibilities towards others. The Victorian model Charter draws from the best and most sustainable features from other charters (notably the Australian Capital Territory, United Kingdom and New Zealand Human Rights acts) and addresses some of their demonstrated or potential flaws. In addition, the proposal to review the Charter after four years would allow all Victorians to have their say, supportive or damning, on the operation of the Charter. This is about as far from the situation of the United States Bill of Rights, with its constitutionally protected status, as you can get and is appropriate for a community that expects Human Rights to be quietly upheld without it constantly looking over the shoulder of government.