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An opportunity for the people to speak

By George Williams - posted Tuesday, 4 April 2006

Attorney-General Bob Debus has announced that he will put a proposal to the New South Wales Cabinet for a community-based discussion on a Charter of Human Rights. This would not be a commitment to change, but a plan for people to have their say.

NSW is not alone. The ACT and Victoria have both appointed independent panels to talk to people about whether their freedoms need better protection. As a result, the ACT enacted a Human Rights Act in 2004 and the Victorian Government has announced that it will do so this year. Tasmania also began to look at this issue just prior to its recent election.

It is clear that the focus in NSW should not be on anything like the 1791 United States Bill of Rights. Former premier Bob Carr has been a vocal critic of that law, and rightly so. It gives too much power to the courts to decide difficult social issues, a power that should remain with our elected representatives.


Instead, people should be asked about other ways forward, such as the protection of their democratic rights by an ordinary act of parliament. This is the path being followed elsewhere in Australia.

A human rights law in this form can be changed over time and would contain nothing like United States’ right to bear arms. Instead, it would include the freedoms that we as Australians assume that we already have but which are often not protected in the law. These include the right to vote, to freedom from torture and to freedom of speech.

The 1998 UK Human Rights Act and the 1990 New Zealand Bill of Rights Act are laws of this kind. They retain the sovereignty of parliament but still ensure that basic freedoms are set out in one law in a common sense and effective way. They improve how government does its work with the aim of preventing human rights problems arising in the first place.

Courts have a constrained role under such a law. They cannot override parliament, and are directed instead to use human rights to interpret and apply other laws as they impact upon the community. As in the UK, limiting the powers of the courts will mean that there will be almost no increase in litigation.

Improving education about government and the values that underpin our democracy should be central to the debate. One survey found that 47 per cent of Australians were unaware that we have a written constitution, while another reported that only one in three felt reasonably well informed about their rights and responsibilities as citizens.

The process for change and any final law can be powerful tools for education. A charter can set out democratic rights in plain language. This can be used to educate schoolchildren and new arrivals to the state about our common values.


One of the important results to come from consultation with the Victorian people was that such a law should also refer to our responsibilities. For many people, responsibilities such as to obey the law and to respect the rights of others are fundamental. Indeed, it has been proposed that the Victorian law be called a Charter of Human Rights and Responsibilities.

This shows how change must come from the people. Like the NSW Attorney-General, political leaders in other states have recognised that top-down reform does not work. When Australians are not given a say they tend to be wary of change and the motives of those proposing it, especially when politicians say it is for their benefit.

It is heartening that in NSW the community could be involved from the very beginning before any decision to move forward. I found out first-hand as the chairperson of the Victorian process that this can work. We took part in 130 forums and meetings and received an unprecedented 2,524 written submissions.

One of the things that was the most pleasing about the Victorian debate was the many people who said that they were delighted at being given a real chance to have their say. Indeed, many of the submissions came from people who were participating in a consultation process for the first time. They often told us how disaffected and disconnected they had been from their system of law and government.

The NSW Government should form a group of people that will listen to the community about this important issue. This should be an independent panel that includes members with strong community ties. It should travel the state to talk to people in their own communities. We will then be in a better position to determine whether NSW should enact its own charter.

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First published in the Sydney Morning Herald on March 21, 2006.

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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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