Who says Australia needs a national Human Rights Act?

It’s been a while. It must be time for another crack at a Human Rights Act for Australia. If at first (second, third, fourth, etc.) you don’t succeed, try, try again.

The failures in federal parliament run from Andrew Inglis Clark’s draft Constitution in 1891, through HV Evatt’s 1944 referendum, Lionel Murphy’s Human Rights Bill in 1974, Gareth Evans’ Bill of Rights and Lionel Bowen’s re-draft in 1986, Andrew Theophanous’ Bill of Rights in 2001, the Brennan Report’s Human Rights Act in 2009 and the Greens Charter of Rights in 2017.

In the states and territories, a human rights law was rejected in NSW in 2001, while recommendations for such a law were ignored in WA in 2007 and fizzled out in Tasmania between 2007 and 2010. The NT and SA have never asked the question. Only the ACT in 2004, Victoria in 2006, and Queensland in 2020, have made it over the line.

Recent attempts to lobby for a national human rights law include a New Matilda campaign in 2005, a proposal by the NSW Greens in 2011, and a Get Up! campaign in 2014.

But what have the various reports, campaigns and Bills asked for, who has been asking, and why do they say a human rights law is needed? Lawyers calling for a new law is rarely a persuasive tactic, and calling for a law ‘because everyone else has one’, or we ‘should’ have one, doesn’t cut it.

A call for a national human rights law needs to respond to two objections set out by the late arch-conservative, rights-opponent Charles Francis: there have been no identified abuses of human rights within Australia which suggest any need for such a Bill, and there is little demand for a human rights law in the Australian community.

These objections suggest that the need for a human rights law – which seems obvious to progressive lawyers – is far from obvious to many others, from tradies to accountants, bar attendants to flight attendants, commuters to cattle workers.

Because a human rights law both restrains and obliges the state, campaigners need to identify what the government does that would move people to say ‘that shouldn’t be allowed’, and what the government does not do that would move people to say ‘they have to do something’. These are reasons for a national human rights law. These are stories that have to be told; not the stories of lawyers, advocates and activists, but of neighbours, family, friends and people we know and work with and walk past on the street. Think the marriage equality campaign. Think the ACTU’s WorkChoices campaign.

Precisely because a human rights law both restrains and obliges the state, a government will not hurry to enact one, absent any obvious political imperative. Experience suggests that a call for a national human rights law needs a champion within government.

John Stanhope made the ACT Human Rights Act happen, as did Rob Hulls the Victorian Charter. Geoffrey Palmer pushed through New Zealand’s Bill of Rights, and Pierre Trudeau drove the Canadian Charter. The UK Human Rights Act was part of Labour’s policy to end the Thatcher era. Evans and Bowen were the last politicians of influence in Australia to champion a national human rights law; Mark Dreyfus will not do more than commit ‘to re-examine human rights protections in Australia’.

Maybe a human rights law will one day be delivered to Australia by a champion of influence. But if a campaign is to get the public and parliament behind it, then those who can’t explain, simply and clearly, how a human rights law will make a difference to people’s lives need to take a back seat. The real need has to be expressed in the stories of people who need protection of, and from, the state.

A version of this post was published in Volume 43(3) of the Alternative Law Journal as ‘Who says we need a Human Rights Act?’