Legally correct but morally reprehensible

What I would like to see is a new approach to making law and policy that doesn’t ignore the human rights picture. I would like to see the legislature focus on solving existing human rights problems and preventing human rights problems from happening in the future.

The federal Government has proposed to hold a public consultation about how best to protect human rights and freedoms in Australia. I believe it should be welcomed for one simple reason. In a country where every night more than 100,000 people are homeless, and Indigenous Australians still die 17 years earlier than their non-Indigenous counterparts, we can and should do better.

I am now convinced that the best way to ensure that all three arms of government - the executive, the legislature and the judiciary - take care when they make decisions that impact on basic human rights is to introduce a statutory charter of rights. As a Federal Court judge, I did not see the need.

The old argument that the current system is working well just does not stand up.

Opponents of a charter should spend less time glossing over the inadequacies of our current arrangements and more time formulating positive proposals to better protect people for whom the enjoyment of basic rights are still out of reach.

We should not forget the children taken away and the laws that punish the kids of same-sex families. And we should not forget the damage to Australia’s international reputation that occurs when we fail to practice what we preach.

A statutory charter should not allow Courts to strike down laws that are incompatible with human rights. However, if we are serious about implementing our international obligations, we should give Courts the power to provide meaningful remedies to individuals who are victims of human rights violations.

The suggestion that these kinds of arrangements will encourage judicial activism is simply scaremongering. The interpretation of human rights by the judiciary will occur in accordance with the predictable traditions of legal reasoning.

I believe - perhaps optimistically - that the main obstacle to improving human rights protection in Australia is not a lack of care, but a lack of understanding.

If this proposed Inquiry into human rights protection can engage ordinary Australians with the kind of human rights issues that came across my desk in the last five years, the case for change might just succeed.