Why we should have a human rights act

In just over two months Australia will hear the results of its biggest public enquiry ever.

The independent inquiry, led by Father Frank Brennan, is considering whether Australia should introduce a human rights act. The inquiry has wound up its public hearings and a consultative committee now has until September 30 to report its findings.

YOUR SAY: Do you think we need a charter of rights?

Many Australians are complacent about rights. A recent Amnesty International survey found that 61 percent of Australians thought we already had a bill of rights. In fact, Australia is now the only liberal democracy in the world that doesn't have some kind of human rights act.

That fact alone does not mean we should have such an act. After all, AFL supporters shouldn't give up their beloved sport because the rest of the world doesn't share our love for Aussie Rules. But when the rest of the world is doing one thing, and we're doing another, we should at least pause and think.

So, what would a human rights act do? It would require Federal Parliament to take into account human rights when drafting new laws and it would require public servants to comply with human rights when they make decisions.

The reform currently being considered would not change our constitution. This means that when society changes, and certain rights become outdated, the act could simply be amended in the usual way. This differs from the US Bill of Rights, with its entrenched right to bear arms. A national bill of human rights also would allow Parliament to make hard choices. For example, the parliament is more likely to choose the most appropriate balance in anti-terrorism laws between protecting the state and protecting individual freedoms.

My research has led me to conclude that Australia needs a human rights act. But I say this with a sense of balance. I don't agree with those who say we need such an act because otherwise Australia could become another Nazi Germany. Australia is, by and large, a peaceful country. Australian governments do not generally set out to violate people's rights.

And yet we also know that Australia's human rights record is not perfect. Both sides of politics recognise that the life expectancy of indigenous Australians is a national disgrace. Too many Australians lack adequate housing or healthcare. And some of the more vulnerable people in our community, such as the elderly, cannot afford decent care.

A human rights act would not be a magic wand that would immediately solve all these problems. But it would promote government decision-making that helps fix such problems.

Take an example from the UK, which introduced its human rights act 10 years ago. An elderly couple made the difficult decision to move into a government-run nursing home. When they arrived at the home, the staff refused to accommodate them in the same room. The couple was devastated that, after 65 years of married life, they faced spending their last years apart.

But UK human rights law came to the rescue, because it turned out that nursing home staff were obliged, wherever possible, to conform with the couple's right to family life. Very soon, the nursing home found a way to allow the couple to share a room.

This example shows how a human rights act can help governments protect people's dignity in small but significant ways. More than 40,000 submissions have been received by the Brennan inquiry. Many of those submissions tell similar stories and show why Australia should introduce its own human rights act.

Edward Santow is a senior lecturer in law at UNSW, and director of the Charter of Human Rights Project at the Gilbert + Tobin Centre of Public Law.