A charter of human rights could be the missing piece of the puzzle to ensure the protection of human rights at the federal level, writes John Corcoran
Australians have a lot to be proud of and thankful for. We have a sound political and legal system that provides for a robust democracy and allows us to enjoy a high standard of living. But, despite these solid foundations, something important is missing.
Australia's legal system does not provide adequate protection for human rights at the federal level - and this means that the human rights of Australians, particularly the most disadvantaged and vulnerable, are open to violation and abuse. Respect for human rights should and can be a defining characteristic of Australian society.
Currently, however, we stand alone as the only Western democracy without a national charter or bill of human rights.
The current federal legal framework is not suited to robust human rights protection. Our government departments, courts and parliaments have few tools or opportunities to enable them to consider human rights when making, interpreting or administering the law.
Furthermore, significant gaps exist in the protection of fundamental individual rights, including the right to liberty, security of person, privacy and free expression.
The Law Council recently made a submission to the Commonwealth Government's National Consultation on Human Rights, outlining its case for a federal charter of rights as the best mechanism to improve human rights protection in this country.
We want to see a comprehensive legislative charter of rights which includes traditional civil and political rights - such as the right to a fair trial - as well as economic, social and cultural rights - such as the right to adequate food, housing and clothing.
The charter we support would provide protection for human rights at the federal level primarily by ensuring that Parliament and government decision-makers take
human rights into account when making and administering the law.
It would also require government decision-makers - such as government policy -makers, police authorities or government welfare providers - to take human rights principles into account when making decisions or exercising their powers.
In short, it would help to develop a culture of human rights observance within Parliament and government that would operate as a preventive measure to protect against human rights abuses.
Recognition of the human rights of our citizens will also support business in Australia.
Human rights protection is about providing a check on government action - something in which individuals and businesses share a common interest. Australian businesses value the notion of a fair go for all, which demands administrative accountability and fair and impartial judicial and administrative processes. It is these types of values that will be reflected and promoted in a charter of rights.
The Law Council acknowledges that - even with the best mechanisms in place to protect and promote human rights within government - there are still likely to be instances where individuals' rights or freedoms are violated.
For this reason, the Law Council wants a charter that would allow anyone affected by a breach of human rights to ask a court to decide if the action of a government department or agency infringed their human rights.
The court could also decide that the law under which the action was taken is inconsistent with human rights. If the court finds an inconsistency, the charter would require Parliament to respond by changing the law to protect human rights or explain to the public why it will not change the law to protect human rights. The features of the type of charter that the Law Council wants are described in detail in our written submission to the National Consultation. The Law Council believes that such features would comply with the requirements of the Australian constitution and has made a joint statement with other constitutional lawyers to this effect.
While there are a number of things the Commonwealth Government could do to improve human rights protection - such as improving human rights education or increasing parliamentary scrutiny of new laws - a comprehensive, legislative framework in the form of a charter of rights is the best way to ensure all Australian's rights are protected and promoted.
The Law Council is pleased to participate in the current national debate about what Australia can do to make sure we protect and promote human rights in this country, which presents a critical opportunity for all people, from all walks of life, to express their views on human rights.
As with many other individuals and organisations, the Law Council knows that the time has come for something to be done to rectify the current situation, where the rights of the most disadvantaged Australians remain inadequately protected and vulnerable to abuse.
The Law Council believes that the adoption of a charter of rights is the best way to ensure all Australians' human rights get the protection they deserve.
A copy of the Law Council's submission to the National Consultation on Human Rights is available online