Should Australia have a charter of human rights? This question is being asked across the nation by the human rights panel appointed by the Rudd Government last year. But it's a question that has never made sense to me because Australia already has a de facto charter of rights.
Since December 1991 individual Australians have been able to complain about human rights violations to the United Nations Human Rights Committee. The committee judges if the International Covenant on Civil and Political Rights has been breached, and if it has, issues a non-binding directive to the Australian Government.
The first such complaint from Australia was about Tasmania's former laws criminalising male-to-male relationships with a maximum penalty of 21 years in jail. In 1994, the Human Rights Committee found those laws breached the right to privacy and the right not to suffer discrimination, giving the Federal Government a mandate to act. The Government subsequently entrenched the right to sexual privacy in federal law, rendering the Tasmanian laws inoperative, with the overwhelming support of the Australian Parliament and people. Activists then launched a High Court case to have them invalidated altogether, but by then the Tasmanian Government knew the game was up and the laws were finally repealed.
This example of a human rights charter at work undercuts some of the main arguments against such charters. It shows that sometimes our parliaments are not, in themselves, able to resolve intractable human rights problems without input from independent human rights tribunals.
It shows that charters of rights can play a positive role in creating a more just nation, a role that enhances our existing democratic system rather than undermining it.
It shoots down the idea that yet another parliamentary committee would be sufficient to protect human rights. The existing Senate committee that oversees human rights played no effective role at all in tackling the former Tasmanian law.
But UN intervention in the Tasmanian gay law debate also poses what, for me, is the real question about a charter of rights is the one we currently have good enough?
One of the problems with the UN Human Rights Committee is that it is a far-away body, made up of foreign experts possibly unfamiliar with Australian social conditions and unable to take verbal evidence.
It would be in everyone's interests litigants, government and the community for Australia to effectively repatriate the International Covenant so that human rights abuses could be judged and remedied by Australian courts and parliaments under a human rights charter to which Australians have explicitly assented.
Put simply, we need to bring human rights home.
The other problem with oversight by the UN Human Rights Committee is that while a UN decision gives the Federal Government the power to act under the external affairs power in the constitution, the Government is not properly held to account if it fails to act.
The result is that human rights are politicised.
A government can act on causes that are well known and popular but ignore others even if they are just as important.
In truth, the Tasmanian law was tackled by Canberra because it was a hot-button issue in marginal inner-city electorates, while many other worthy UNHRC decisions have been ignored by successive federal governments because no one much knows or cares about them.
It's not just victims of human rights abuses who suffer in these circumstances, it is the principle that human rights are universal, inalienable and above politics.
The solution is to have a charter of rights that ensures government has to answer for all verified human rights violations, not just those it can win votes by addressing.
This is what the ACT and Victoria have begun to do with their local charters. It is the fundamental deficiency in our current, de facto national charter. And it should be the key issue for the national human rights panel.
Rodney Croome was made a Member of the Order of Australia in 2003 for his gay human rights advocacy. The national human rights consultation panel is holding public hearings in the Great Hall at Parliament House this week.
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