Charter of rights no protection for the vulnerable

The peculiarly moral nature of human rights can make it difficult to analyse the way a law enumerating those rights, a charter of rights, would operate in practice.

Supporters and opponents often talk in sweeping generalities about the value of minorities, the need to care for those who slip through the cracks, and increasing government accountability. Yet it is critical that the government take an evidence-based approach to the question, to the extent possible.

To wade through the rhetoric and research the practical operation of a charter is difficult, especially when the government has not yet indicated its intention to introduce a charter and has offered no particular charter model. There are, however, some good indications of what might happen if the government does propose a charter of the kind recommended late last year by the National Human Rights Consultation.

The first indication comes from public choice theory. This theory was developed by economists James Buchanan and Gordon Tullock in the mid-twentieth century and proposes that public actors respond to incentives for personal benefit in the same way as private actors. Interest groups who wish to determine the way government and society behave by determining the terms of a charter can invest in lobbying to achieve that end. They can also go to court and fight for particular interpretations of rights.

Further indicators show how public choice theory is playing out in Australia. They come from the experiences of the ACT and Victoria, which both have charters. Pro-choice interests have been recognised in both charters and trade union interests in Victoria. Both charters also provide for reviews at set intervals to consider adding new rights including those to welfare, work, healthcare and Indigenous self-determination, as well as the possibility in the ACT of creating an environmental rights overseer.

Another indication comes from the way judges have acted within the first few years of the ACT and Victorian charters. With some exceptions in Victoria, judges have generally avoided making sweeping statements about the charters or decisions that alter existing laws in substantial ways. Instead, judges have turned to pre-existing common law rights and case law to ground their decisions.

That is a position that would probably change in the longer run, as interpretation of the charters becomes clarified by a body of cases and lawyers become more confident in bringing arguments based on those interpretations. That has been the experience in worldwide jurisdictions where charters exist.

However, it is interesting to observe a catalyst for that development in the form of legal academics and experts. In the ACT, those experts have called for amendments to the charter and training programs that will push judges to take a more assertive approach to their role under the charter. They would like to see judges more often relying on charter arguments and more willing to tell parliament that a law is out of step with human rights.

As a whole, the evidence suggests that a charter of rights would not simply be a declaration of Australia’s moral values that would protect a neglected few. Instead, it would be a political tool manipulated by interest groups and legal experts to support the interests of a politically savvy few. 

Elise Parham is a Policy Analyst with The Centre for Independent Studies and author of the report Behind the Moral Curtain: The Politics of a Charter of Rights.