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Human rights finally take centre stage

By George Williams - posted Monday, 24 December 2007

Attorney-General Robert McClelland wants to ask Australians whether we need a national charter of rights.

Like the recent Tasmanian community report and the imminent release of the same in Western Australia, this is the right place to start. This reform should not be imposed from the top down. It should only occur if Australians want better protection for their human rights.

The focus of a community process must be on a sound and achievable model. We should jettison the US model and any idea of a constitutional bill of rights. The Australian debate should instead be based on ordinary laws like the charters and human rights acts introduced in New Zealand, Britain, the Australian Capital Territory and Victoria.


A new national charter would give the leading role to parliament and the people in the scrutiny of new laws and the protection of rights. The primary role of the courts would be to interpret legislation to be consistent, so far as possible, with the intentions of parliament and the protected human rights. Where this is not possible, the courts could not strike down a law.

They would only be able to declare that - in their view - the law is incompatible with the charter and refer it back to parliament for consideration.

This declaration mechanism could be constructed to be valid under the Australian Constitution. However, there may still be some residual doubt to be tested in the High Court. Whatever the outcome, this is a significant, but not essential part of a national charter of rights. As an act of parliament, the charter would not transfer sovereignty from parliament to the courts, but heighten human rights concerns within the political process.

In other words, the charter would strengthen and broaden the scope of our democratic system, not transfer key decision-making powers to the judiciary. This is in sharp contrast to the US system, whereby the US Supreme Court is able to have the last say on issues such as euthanasia.

The British Human Rights Act has been a success without giving rise to the litigation and other problems sometimes associated with the US Bill of Rights. The impact of the British law on the courts is monitored by the Human Rights Unit of the Department for Constitutional Affairs. The unit has found that the act has not produced a significant rise in litigation or created a "litigation culture" of rights protection.

Similarly, an article by researcher Tom Mullen and others on the impact of the British act in the Scottish courts found that human rights arguments were raised in "a little over a quarter of 1 per cent of the total criminal court caseloads over the period of the study". Overall, the authors concluded that "it seems clear that human rights legislation has had little effect on the volume of business in the courts".


A key issue is which rights should be protected.

One option would be to include all of the rights mentioned in the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights. After all, Australia has ratified both covenants and has undertaken to incorporate them into our law. Another option - the one adopted in the ACT and Victoria - would be to begin by protecting a limited range of rights and then seek to increase the list of protected rights over time.

The best course would be to take the list of rights in the ACT and Victoria and to add in further rights that are of particular importance to those who are most in need of rights protection, such as Indigenous people and people living in poverty or the disabled. Hence, the protected freedoms might also include rights like those to housing and education.

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First published in The Australian on December 14, 2007. This article is developed from his UNSW Press book, A Charter of Rights for Australia.

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About the Author

George Williams is the Anthony Mason Professor of law and Foundation Director of the Gilbert + Tobin Centre of Public Law at the University of New South Wales.

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