Weak arguments should not be allowed to sink plans for a charter.
The federal government's formal response to the National Human Rights Consultation Committee's report contains welcome initiatives focused on reaffirmation, education, engagement, protection, and respect for human rights. However, a key word is missing from that list: accountability.
In that regard, it is regrettable that the government has chosen to reject the committee's cornerstone recommendation that it introduce a federal human rights charter. Australia will therefore continue to stand alone as the only Western democracy without comprehensive legal protection of human rights.
The ''charter of rights'' debate has thrown up some familiar furphies. Such a charter is said to transfer too much power to unelected judges. This argument seems to imply that an ''unelected'' judge is a bad thing. Yet the unelected nature of our judiciary is a strength: a judge cannot be independent and impartial if he or she is elected. In any case, under the committee's proposed charter, Parliament was always going to retain the final say on human rights matters. It could have reversed interpretations that it did not like, and could have ignored a judicial declaration that a law was incompatible with human rights.
There have also been concerns that a charter would politicise the judiciary. While human rights matters can involve politically charged issues on occasion, it is impossible to shield the courts from political matters.
Our High Court has pronounced upon the validity of many historically contentious laws, such as WorkChoices, the Tasmanian dams legislation and, long ago, the Communist Party Dissolution Act. Our judges are capable of making principled, apolitical human rights decisions.
The outer limits of some human rights may seem quite imprecise. For example, freedom of expression can be limited under international human rights law in reasonable and proportionate circumstances.
It has been said that these standards are too vague for the judiciary to cope with. Yet vague standards arise in many areas of law: standards of negligence are measured against the hypothetical actions of ''the reasonable man''.
Tests of reasonableness and proportionality also pepper Australian constitutional law.
Moreover, judges would not interpret human rights in a vacuum: there are plenty of international cases, including from countries such as Britain and Canada, that shed instructive light on the meaning of human rights.
Another argument is that a charter would be a bonanza for lawyers and would clog up our courts. That has simply not happened in Victoria, the ACT or Britain, which all have human rights charters of the type recommended by the committee.
This argument seems to be based on the comparative experience of the US. But the US has a different legal culture - for example, unsuccessful litigants are rarely required to pay the winner's costs.
Finally, there is the tabloid favourite - that a human rights charter would be of the greatest use to villains and criminals. Criminals and suspected criminals are most likely to make claims regarding the right to a fair trial or procedural rights concerning arrest and detention, rights that judges are already familiar with. They may also make claims about their right to humane treatment in custody.
We doubt that many of the ''rogues' charter'' critics are seriously arguing that criminals or suspected criminals should be subjected to arbitrary (as opposed to justified) arrest, unfair trial, or inhumane treatment.
When the human rights of suspects are not respected, miscarriages of justice often follow. Consider, for example, the forced confessions and wrongful convictions of the terrorist suspects known as the Guildford Four and Birmingham Six in Britain, and the farcical detention, charge, and deportation from Australia of Dr Mohamed Haneef in 2007.
The rights that protect criminals and suspects, in fact, protect us all. They also promote good policing practices, helping to minimise the maltreatment of suspects and the arrest or conviction of innocents.
The huge majority of the people who contributed to or were surveyed during the National Human Rights Consultation favoured a human rights charter. In fact, the level of response to the consultation was the largest in Australia's history.
So what, one wonders, has caused the government to reject the key recommendation arising from that consultation? After all, the arguments against charters of rights are not new - the government would have been aware of them before establishing the consultation process. Attorney-General Robert McClelland merely stated that a charter would ''divide the community''; there was little elaboration.
Alas, the government's response - as well as other recent acts, such as suspending asylum applications from Afghanistan and Sri Lanka - indicates that human rights have been given a low priority during this election year. In largely retaining the ''safe'' status quo, the government has chosen to deny Australians any right of redress when their human rights are abused.
Professor Sarah Joseph is director of the Castan Centre for Human Rights Law at Monash University.
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