The appeal of having a Charter of Rights at the federal level seems almost irresistible. After all, wouldn’t it bring Australia in line with other Western English-speaking democracies? More than this, it will signal Australia’s affirmation of human rights and bring about a robust culture of rights that will herald a general improvement in the protection of rights.
We should pause a little before accepting these claims. Australia may be the only country among Western English-speaking democracies not to have a Bill of Rights. But it is also the only one in this group of nations to have compulsory voting and an award system. So if the argument is one based on harmonisation then the abolition of compulsory voting and the award system should come hand in hand with the enactment of a Charter of Rights.
Sometimes it seems that a Charter of Rights is invested with elixir-like qualities that will banish all the woes that Australia experiences in areas as diverse as immigration law, Indigenous affairs, counter-terrorism laws, rural deprivation and homelessness. But there is no magic bullet to address these disparate challenges to human rights.
Matters are stubbornly complex and whether a Charter of Rights will enhance the protection of rights in any area should be carefully assessed rather than presumed. Much the same can be said of treating the most recent abuse of executive power as self-evident arguments for a Charter of Rights.
Cases like those of Dr Haneef and Cornelia Rau should be deplored and condemned. This, however, says very little of what needs to be done to avoid their reoccurrence. The lengthy detention inflicted upon Dr Haneef, for example, was permitted by extensive arrest powers accompanying overly broad “terrorism” offences. In this situation, repealing or amending these laws would serve the cause of civil rights far better than any Charter of Rights.
Arguably, the most appealing argument of a Charter of Rights is that it will promote a culture of rights. Yet this may be too glib. A culture of rights already exists in Australia if by rights we mean the entitlements of citizens including limitations on state power.
So much is reflected in the debates relating to recent counter-terrorism laws that implicated fair trial, rule of law and democratic principles. It is also apparent in debates surrounding WorkChoices not least because of the ACTU “Rights at Work” Campaign.
The argument then is not that a Charter of Rights will promote a culture of rights per se but that it will result in a particular culture of rights. This perhaps brings us to the nub of the issue: the real risk of a Charter of Rights like the UK Human Rights Act increasing the legalisation of human rights politics.
This is likely to result from its codification of human rights in statute and granting an increased role for courts on these questions. Under a Charter of Rights, human rights arguments will tend to be couched in terms of statutory provisions and the like. Court decisions will be seen as the repository of wisdom on questions of human rights. As a consequence, human rights debates will increasingly privilege legal material and expertise.
This runs counter to the notion of a democratic political culture. Such a culture implies accessible politics where ordinary citizens can participate in debating and resolving key questions that confront them as a community. These must include questions in relation to their rights as human beings and as citizens.
The increased legalisation of human rights politics is, however, likely to reduce popular participation in such debates with human rights seen as peculiarly the province of (human rights) lawyers and courts.
Ironically, this may also impair the protection of rights. Rather than being dealt with on their substantive merits, issues relating to human rights will be analysed through the lens of statutory provisions and case law.
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