Human rights debate looms after election

An Australian bill of rights could provide equality for gay and lesbian people when governments are reluctant, according to legal experts.
But Attorney-General Philip Ruddock warned that giving judges the power to interpret rights independent from parliament led to Canada’s same-sex marriage and oral hearings for asylum seekers.
“I doubt that many Australians would welcome these outcomes,” Ruddock wrote in The Sydney Morning Herald.
Ruddock was the first to introduce marriage equality to the reignited debate about an Australian bill of rights and said it went against democracy.
UNSW senior associate Dean Sarah Maddison, who authored the sexuality audit for the Democratic Audit of Australia, said protecting the rights of minority and vulnerable members of society was an essential component of democracy.
“Yes, the government of the day has the right to legislate, but the judiciary oversees and interprets that, and does express a range of community values as evidence before the courts through their judgements,” Maddison said.
UTS law professor Jenni Millbank said there was an “odds-on-chance” that courts would recognise same-sex de facto couples, but marriage equality was still contentious.
“It depends on how courts interpret equality,” Millbank said. “Internationally some courts have said same-sex couples don’t deserve equal rights; others say it doesn’t include marriage. Increasingly they’ve said it does, but it’s not a foregone conclusion.”
Millbank said the High Court of Australia would probably follow the 2003 case of Edward Young v Australia, where the UN Human Rights Committee ruled in favour of de facto rights for same-sex couples.
When courts did legalise same-sex marriage, public support usually followed quickly, Millbank said.
Senator Kerry Nettle said it was longstanding Greens policy to support a bill of rights, and she was eager to work with Labor, which is also looking at ways to enshrine protections.
The Labor platform calls for public consultation on legislating human rights, but ruled out a US-style constitutional bill of rights that could overrule parliament.
Nettle said a constitutional bill of rights would require popular support through a referendum, but would prevent a Government from exempting itself.
“I wouldn’t oppose a legislative one, and that may be a step towards getting a constitutional one,” Nettle said.
Labor has introduced human rights legislation in the ACT and Victoria that protects on the basis of sexual orientation. The WA Government has similar plans with a report due in November.
Federal Labor will establish a committee to consult on legislative proposals if it wins office at the next election.