Human rights finally take centre stage

A charter could make a real difference to the protection of human rights in Australia. It would give legal effect to many of our basic freedoms for the first time. While Australians often wrongly assume that they have these rights, the charter would turn them into law.

Like the UN's Universal Declaration of Human Rights, a charter of rights could also have a symbolic force that promotes important values such as freedom, community responsibility and tolerance of cultural diversity.

In fact, the most important contribution a charter can make is not the benefit it brings to the small numbers of people who succeed in invoking rights in court. It is how it can help to prevent the making of bad laws and how it can be used to educate, shape attitudes and bring hope and recognition to people who are otherwise powerless.

A charter of rights could have a powerful effect on the making of new laws and on improving the accountability of governments to the people. A charter would make it more likely that human rights concerns, like freedom of speech, are raised as the law was passed rather than at some later time.

At present, problems can go unnoticed and unreported if an issue is only aired years after the law has come into force, and the impact can be devastating. A charter would create an Australian reference point against which to examine proposed laws.

New laws would be debated in parliament and within the community not only according to how they meet international standards, but also on the basis of our own developing sense of human rights. Even if the law were passed, the charter would enable an independent determination of whether the law breaches human rights.

In the courts, an affected person could argue for an interpretation of the law that protects rights, or even that the law is incompatible with those rights. In the latter case, a decision by the court to find that a law is incompatible would send the law back to parliament for a second look.

With the benefit of hindsight, and perhaps after the initial political debate has cooled, this could provide a crucial second chance to examine the law. This has been the experience in Britain. Its parliament has in all cases moved to fix a human rights problem once identified by a court.

An Australian charter would mark an important shift not only in the law but in politics and the development of policy. The focus would be on ensuring that fundamental principles of human rights are taken into account at the earliest stages of the development of law and policy. This recognises that the best human rights protection does not lie in court after a breach has occurred, but in ensuring that the problem does not arise in the first place.