The latest push for a national charter of rights has provided a valuable lesson for charter supporters: they need to open their eyes to reality.

Yes, the protection of human rights is an ever-changing challenge.

 But Australia’s performance on this measure is comparable and frequently superior to jurisdictions that have statutory and even constitutional bills of rights.

So if our system is generally performing well,  why should we switch to a mechanism that, on the global evidence, can result in inferior outcomes?

Even domestically, state-based charters have a poor record. Research by Ben Saunders of Deakin law school shows they did not lead to more rights-favourable outcomes during the Covid lockdowns.

The latest push for a national charter reached its zenith in May when a parliamentary inquiry called for a national human rights act. It did so in  the misplaced belief that our rights are at risk.

The inquiry’s report makes that clear: “Our current piecemeal approach to human rights protection is not adequate to ensure rights and freedoms are properly respected, protected or promoted.”

Yet there is plenty of evidence that a charter does not amount to a silver bullet. Experience elsewhere shows the mere existence of such a document does not lead to better outcomes.

The rights listed in the Constitutions of North Korea and the former Soviet Union did not prevent immense abuses of human rights.

 The United States Bill of Rights did not prevent slavery and in revolutionary France the Declaration of the Rights of Man did not prevent the reign of terror.

Three attempts have been made to include rights in the Australian Constitution and all have failed at referenda in 1944, 1988 and at last year’s Voice referendum.

Federal governments have also twice tried to enact a statutory charter and both efforts failed, first in 1973 and most recently in 1986.

Yet this country still out-performs most of its counterparts internationally.

Last year’s edition of the World Justice Project’s Rule of Law Index shows Australia, without a charter, ranks 21 out of 142 countries when it comes to protecting fundamental rights.

The US, with its Bill of Rights, was ranked 38 while France and Italy, which are subject to the European Charter of Fundamental Rights, ranked 27 and 30 respectively.

This is not an aberration. A report last year by a think tank at the University of Rhode Island in the US compared the human rights performance of 195 countries.

That university’s Centre for Nonviolence and Peace Studies found Finland topped the human rights rankings with a score of 98 out of 100. But Sweden and Australia were tied for second place with scores of 92 out of 100.

This makes it difficult to avoid the conclusion that the greatest guarantee of fundamental rights in this country is not legal or even constitutional. It’s cultural.

If a community truly values fundamental rights it will resist inroads on its liberties regardless of whether it has a charter.

This assessment is reflected in how the United States views Australia’s system protecting freedom of speech. The US State Department concluded last year that freedom of speech is promoted in this country despite the fact our Constitution does not include a US-style first amendment.

This is spelled out in the State Department’s report on human rights in Australia:

“Although the Constitution did not explicitly provide for freedom of speech, including for members of the press and other media, the High Court held that the Constitution implied a limited right to freedom of political expression, and the government generally respected this right,” the State Department report says.

“An independent media, an effective judiciary, and a functioning democratic political system combined to promote freedom of expression, including for members of the press and other media.”

There will always be room to improve the protection free speech and other fundamental rights but our domestic concerns need be viewed within the broader context.

This is how the State Department summarised this country’s performance on human rights in 2023: “There were no reports of significant human rights abuses.”

Even if we are prepared to set these matters aside, another problem emerged during the recent federal inquiry.
Why would we even consider embracing the much-touted “dialogue” model of a charter when it might well be struck down by the High Court as unconstitutional?

This form of charter would force governments to review particular laws whenever judges declare them to be incompatible with human rights.

The High Court, in a case known as Momcilovic v The Queen, has indicated that such a mechanism could not be used in federal courts because it would breach the separation of powers.

As a result, the model charter prepared by the Australian Human Rights Commission has tried to get around that problem using a technique that, while avoiding the use of a formal judicial declaration, would achieve much the same outcome.

If this were implemented, future federal governments would be coerced into reviewing laws if rulings by federal judges show they infringe human rights.

The ALRC has portrayed this as a “middle ground option”. In reality it is an undemocratic attempt to give judges a role in politics.

It proceeds on the assumption that the task of setting the boundary between conflicting rights is best done by unelected judges rather than elected members of parliament.

The ALRC’s proposal also failed to persuade Pamela Tate, a former judge of the Victorian Court of Appeal. While supporting the idea of a national charter, Tate told the inquiry the commission’ mechanism might still be struck down.