Opponents of human rights charters decry them as unnecessary in a robust democracy, as a dangerous shift of power from parliament to judges, and a blessing mainly to lawyers.
But rarely do they consider how easily basic freedoms can be taken away in the absence of human rights guarantees.
To mark the 60th anniversary of the signing of the Universal Declaration of Human Rights today, the Hobart City Council will apologise for banning a gay law reform stall in Salamanca Market 20 years ago, and for ordering the arrest of anyone who defied its ban.
The ban was unashamedly discriminatory, with the then mayor agreeing on national TV that it was right for there to be one law for heterosexuals and one for homosexuals.
Because the stall was one of the first political statements of a small and cautious gay community, the Council expected little resistance. Instead the ban sparked the largest gay rights civil disobedience in Australian history.
Over seven weeks 130 arrests were made, as hundreds more protested from the market’s grassy verges.
The Council’s clumsy response — arresting anyone found with a gay law reform petition or known to be gay, banning protesters for life and threatening them with jail — only inflamed the situation.
Frustratingly, the Human Rights Commission was powerless to intervene, as was Federal Parliament. In the absence of guarantees of fundamental democratic rights, like freedom of speech or freedom from discrimination, the Council seemed unstoppable.
Only because of the local and national outcry, and because a legal technicality undermined the charges of trespass brought against stall supporters, was the Council forced to back down.
Twenty years on, little has changed. There is still no explicit and enforceable protection of the rights the Council so blithely breached. If the Hobart City Council wished, it could ban and arrest us all again tomorrow knowing there are still too few checks on such repression.
The fact that it won’t is the argument of last resort for opponents of human rights charters. They say that, despite the absence of human rights guarantees, Tasmania’s laws and attitudes on homosexuality have been transformed to the point where organisations like the Hobart City Council can say "sorry" for their former discrimination.
But this ignores the fact that human rights guarantees did play a crucial role in changing Tasmania.
Tasmania’s former laws against homosexuality — laws which prompted both the gay law reform market stall and the Council’s repression, were only overridden federally and then repealed locally after they had been roundly condemned as a violation of the International Covenant on Civil and Political Rights by the UN Human Rights Committee.
In other words, it took a foreign tribunal judging a global charter of rights to do what Australia’s parliaments could not do (a finding of the UNHRC does not carry the force of law in Australia but it does give the Federal Government constitutional power to override a discriminatory state law if it chooses to act on that power).
This history exposes as a lie the argument that parliaments alone can protect human rights. It also shows that the debate is not about whether we should have an Australian charter of rights — the International Covenant is already our de facto charter.
Rather, the debate is about whether it’s sufficient for Australians to be judged by a tribunal we didn’t appoint under a Covenant we as a country didn’t design, or whether human rights violations should be judged by Australian judges according to standards set by Australians.
For me there’s no doubt — I’m for bringing human rights home.
I also have no doubt that as former arrestees gather today to hear the City of Hobart’s historic apology they will agree it’s high time a human rights charter was enacted to ensure that what they suffered 20 years ago will never be allowed to happen again.
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