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A first Charter of Human Rights enacted in Australia

Amy Carmichael, 6 February 2008

Australia - a nation that prides itself on providing every bloke with a fair go - has lagged behind all major common-law based countries in enacting a Charter of Human Rights.

The state of Victoria, in the country’s southeast, has sparked debate about the issue by phasing in a Charter of Rights and Responsibilities. It came into full effect on 1 January 2008.

Several other states have since begun consulting with the public on whether they should also strengthen laws to better protect human rights. The federal government has signalled it will hold a public consultation on a charter
for the nation.

The various governments - state, territory and commonwealth - across Australia are watching to see if the critics’ predictions will come true in Victoria. These range from allegations that the courts will become clogged by a flood of legal action, to fears that criminals will be able to use the charter for personal gain.

The same predictions were made - but did not eventuate - when the Australian Capital Territory introduced a Human Rights Act in 2004.

The British Model instead of the Canadian model

Victoria’s charter formally protects - for the first time - key rights including freedom of speech, freedom of peaceful assembly, protection against inhumane or degrading treatment, protection of families and children, and the right to take part in public life.

The charter’s 20 rights were selected after an extensive consultation with the people of Victoria. The government settled on rights that Victorians universally endorsed. Rights that everyone agreed should be set in law. However, people said they did not want a US-style bill of rights, which Victorians saw as having contributed to a more litigious society.

Victoria’s charter also operates quite differently from Canada’s Charter of Rights and Freedoms. In Victoria, an alleged human rights breach can be taken to court only if it is part of another case or "action", such as a claim of assault or negligence. Complainants do not have any right to damages. The charter offers only the rights to challenge, to be heard and to be answered - publicly.

If a court finds that a policy or law breaches the charter, it does not have the power to strike it down or override it. The court can only declare that it is incompatible with the charter. Victoria’s Attorney-General must respond to this declaration within six months, and the Government can make any changes it sees fit - or leave the law as it is. If the Government chooses to override the charter in the interest of public safety or the greater good, it must provide an explanation and justification.

The charter will guide the work of government and public authorities to consider human rights when making laws and delivering services. The Victorian model is a “prevention” model, which forces government to be vigilant and transparent.

Build a culture of respect

A central goal behind the charter is to get Victorians thinking about human rights and to build a culture of respect.

Young people will study the charter at school. Thousands of people who work for public authorities will have to comply with it. Already, hundreds of key staff have been trained and they in turn are training their colleagues on their responsibilities under the Charter.

Some 59 years have now passed since the Universal Declaration of Human Rights was signed by the General Assembly of the United Nations.

In 2008, Australian society is certainly not free of inequality and bigotry. Indeed, Ikea catalogues and Hollywood laugh tracks have left the western world rather complacent. Materialism means people are too busy to pay attention to the heartbreaking stories of people on the margins, stories that illustrate the need for a charter of rights in a developed country.

The examples are everywhere.

In June, the Australian Human Rights and Equal Opportunity Commission published the results of a study on discrimination against gay and lesbian people.
The report told a story about a lesbian woman who died alone in a hospital bed. Her partner was made to wait in the hall because she was not related by blood or marriage.
In Melbourne, Vic., racial tensions flared after the former prime minister said Sudanese refugees weren’t settling in well.

There were reports of young refugees being verbally abused and told to go home.

The charter’s underlying principles are summed up by the acronym FRED: freedom, respect, equality and dignity - values that describe the way we all wish to live and be treated.

Hopefully, over time, FRED will be as well understood in Australian schools as the sun safety tagline: Slip, slop slap, which refers to sunscreen.

A National Charter?

However, the Charter has had a rocky start since it came into effect in Victoria on 1 January.

It only took 10 days for lawyers for drug lord Tony Mokbel to declare they would the rights act in a bid to escape a long prison sentence in Australia. Mokbel is in jail in Athens after his arrest Greece last June, and is running out of options in his extradition battle.

Mokbel’s lawyer, Mirko Bagaric, who co-authored a book on the charter, said Mokbel shouldn’t be tried in Victoria because he is too high profile. The charter enshrines the presumption of innocence in law.

These sorts of scenarios plagued the rollout of the UK’s charter of rights and undermined public confidence in the Act.

There were scandalous headlines about a British prisoner who used the charter to challenge his jail’s ban on pornography.

He was, in fact, laughed out of court, but that part of the story didn’t sink in.

Victoria is trying to plan for these kinds of pitfalls. The Equal Opportunity and Human Rights Commission is educating the public about the charter, and the government has engaged a number of high profile people, including the Victoria Police chief commissioner, a comedian, indigenous leader and politicians across the political spectrum, to champion the charter.

Its inception has certainly put human rights front and centre on the political agenda in Australia.
Western Australia and Tasmania are both working to develop charters on the state level.

With a new Labour government in power at the federal level, it is expected a Commonwealth charter will be developed in the coming years.