The next big reform for South Australia
A clear statement of the rights and responsibilities of the government, organisations and citizens in the general community is needed in South Australia, write Kym Davey and Rob Hulls.
South Australia has a long and proud tradition of law reform famously set in motion internationally when women gained the right to vote and to stand for parliament in 1894.
These law reforms have continued through more recent years under the Dunstan, Tonkin, Bannon and Rann governments.
Both Liberal and Labor parties have initiated and presided over important rights reform law in SA. In the present term of government Labor has also delivered the First Nations Voice Act and a collection of inheritance law revisions incorporated into the new Succession Act.
Whilst we should be proud of South Australia being at the forefront of social justice law reform over many years, the plethora of legal changes has created its own problem. Now, many rights are included in a variety of statutes and are often hard to find. There are also gaps in the existing legal protection of human rights.
Now is the time to put this right.
Almost 20 years ago, the Victorian Parliament decided to enshrine the protection of basic human rights in that State by introducing the Charter of Human Rights and Responsibilities Act.
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This legislation has become a powerful tool in assessing whether human rights protection in Victoria reaches minimum standards. The Act promotes better government by requiring laws, policies and decisions to consider the civil and political rights of people in Victoria.
The Victorian Charter ensures there is proper debate about whether proposed laws strike the right balance between the rights of Victorians and what limits can be justified in a free and democratic society. Importantly, the Victorian Charter recognises that with rights come responsibilities and that everyone in the community has a responsibility to respect the human rights of others.
Despite our history and the attention given to redressing the wicked public policy problems of the day, South Australia has yet to tackle the big reform achieved by the Victorian Human Rights Charter.
This was a watershed for human rights law in Australia and, along with the human rights acts of Queensland and the ACT, provides a valuable template for progressing human rights protections in South Australia.
South Australia today has a strong state government led by a Premier with an ambition to cement South Australia’s reputation as a modern, progressive, multi-cultural society attractive to investment and lifestyle.
The need now is to match that ambition with a clear statement of the rights and responsibilities of the government, organisations and citizens in the general community.
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Based on the Victorian model, we propose rules that will ensure governments of all political persuasions take full account of the basic rights people have to equality before the law and a fair allocation of public resources. As is the case in Victoria, this could be done by requiring that all new legislation brought before the state parliament include a statement of compatibility with a Human Rights Act.
It is also desirable for citizens to have a mechanism in law, and through conciliation, to have bona fide grievances of human rights breaches heard and determined without the imposition of unreasonable costs or cumbersome legal proceedings. Again, the conciliation model in place in Victoria is a good example of this approach.
Just as there were loud critics and opponents of women’s suffrage, First Nations land rights and equal opportunity laws, there are those today who suggest that human rights law reform will create more problems than it solves.
They often argue the ‘lawyers picnic’ furphy, claiming individuals and public interest groups will seek to challenge various forms of legislation and policy, creating a litigation-centric culture. However, concerns along these lines, espoused in all jurisdictions with human rights legislation, have proven to be unfounded.
The experiences thus far from Victoria, Queensland and the ACT indicate that the impact of their respective Charters on overall litigation has been insignificant.
The Law Council of Australia has similarly observed that the experience of the three jurisdictions has shown that Australian courts are perfectly capable of implementing statutory rights instruments in a manner that respects the sovereignty of Parliament. They note that none of those jurisdictions has seen a ‘flood’ of human rights litigation, as was feared by some.
In a world where human rights are far too often being ignored, we sense a growing hunger in the community for more tolerance and respect for diversity and human dignity. The act of considering human rights is about putting people at the heart of decision-making.
Just as the intrepid women of the Women’s Suffrage League generated widespread community support for the vote in the 1890s, so now the Rights Resource Network SA, SACOSS and Australian Lawyers for Human Rights have joined together to lead a groundswell of public support for a Human Rights Act for SA. The Social Development Committee (SDC) of Parliament has delivered its verdict in favour.
Now is the time to act.
Kym Davey is a human rights advocate and a former Chair of the SA Labor Platform Committee
Rob Hulls AM, is a former Deputy Premier and Attorney-General of Victoria, and current director of the Centre for Innovative Justice at RMIT. He was responsible for the introduction of the Charter of Human Rights in that state in 2006.
