Australia’s charter of rights story ended last year as a cliffhanger. The National Human Rights Consultation recommended Australia adopt a charter, but the federal government has thus far held off on responding.
So, as ministers reappear at their desks this week, just what ending are we hoping the government will script?
Maybe the fairytale ending: the government will introduce a charter that will achieve all the good things it promises. After all, what could be wrong with having a national law that makes the public service accountable to the needs of the vulnerable, politicians legally bound to be moral, and judges heroic in making decisions in defence of human rights? Surely we would all live happily ever after? Well, like any good deconstructionist, we have to read between the lines.
Though a charter appears to be a foolproof step forward for Australia, there are aspects to it that are largely unseen. What looks like a fairytale ending would actually be more of a Shakespearean tragedy. It looks like the innocent flower, but has a serpent under it.
Behind the good intentions and moral platitudes lurks the political world of law-making. It’s a world dominated by lobbyists, activists and special interest groups. Ninety per cent of those who informed the consultation they wanted a charter channelled their opinions through interest group campaigns.
The charter tale has come to life in the ACT and Victoria. Both have charters and both have bowed to pressure to legislate for interest-driven rights now and in the future.
For example, leveraging their balance of power in the ACT’s unicameral parliament, the Greens have forced the government to consider employing an environmental rights overseer for the charter. All laws and policy, then, would effectively need the rubber stamp of the Greens.
On top of this, an ACT government-funded review is considering new rights to be added to its Human Rights Act, including indigenous, welfare and healthcare rights.
In Victoria, a review will soon follow the ACT lead and search for similar new rights to be added to the charter. The Victorian charter also includes the right to form and join a trade union but no right to refuse union membership.
The sky’s the limit for special interest groups when it comes to getting their causes defended by a charter because the rights agenda is not narrowly defined.
Charters across the world include environmental rights, protections for trade unions, commitments to welfare payments, and pledges for self-determination of indigenous peoples. Lobbyists know that any interest with a human rights angle can be added to the charter.
Hang on, you might say, this is no different to any other law.
Interest groups always have a say in the design of a law, but parliament in the end decides what it wants to do.
Actually, a charter is not like any other law. Because of the structure of a charter, its rights can be used to direct the behaviour of politicians, the public service and judges, with an indirect effect on business and the community as well. It’s the golden opportunity lobbyists have always wanted: to exercise control over the Australian way of life by setting the bounds of government and community action.
Never mind the suggestion that the consultation’s proposed dialogue model is moderate and will not have a pervasive effect on Australian government.
The proposed charter might not be our highest law, which is the Constitution, but it’s very close.
It would take a courageous government to decide to set aside human rights for the protection of some other interest. Just look at reactions to the Howard government’s decision to set aside the Race Discrimination Act in order to roll out the Northern Territory Emergency Response package.
And anyway, why would anyone rally behind the charter if it would not change anything?
A charter is also so morally righteous that no one would dare to question what lay behind its terms. Special interests can play a clever hand when it comes to human rights laws. Like the swindlers who created the emperor’s new clothes, those who question their do-good facade must be either irredeemably ill-suited to public life or unpardonably stupid.
This attitude rips at the heart of democracy, but it does make sense of Oscar Wilde. As he says, only a superficial man would not judge by appearances.
The government has more to rely on than Wilde’s witticism. Will it beware of the naked self-interest that lurks behind the supposedly idyllic charter tale?
If not, the ending to our charter story will have a twist.
It will become a thriller and special interests will be writing the sequel.
Elise Parham is a Policy Analyst with The Centre for Independent Studies. Her report Behind the Moral Curtain: The Politics of a Charter of Rights was released last week.