g) Lots of non LGBT issues
This article was published on On Line Opinion on 7.4.08.
After a promising beginning, the proposal for a Tasmanian Charter of Rights has stalled.
In 2006 the Tasmanian Law Reform Institute (TLRI) was asked by the State Government to conduct an inquiry into a state Charter of Rights. After receiving substantially more submissions than similar inquiries in other states, 94 per cent of which supported a Charter, the TLRI issued a report strongly endorsing reform.
While the TLRI supported a statutory rather than constitutional Charter, consistent with existing charters in Britain, New Zealand, and on continental Australia, it recommended that state courts be given unprecedented powers to remedy as well as investigate human rights breaches.
It also took the unprecedented step of recommending that a Tasmanian Charter enshrine social, cultural, and economic rights, as well as civil and political rights.
Tasmania was on track to achieve a world-class Charter of Rights to match its powerful anti-discrimination and relationship laws. Then, suddenly, the momentum stopped.
First the state government said it would seek “national consistency” on the issue before proceeding. Then the Hobart Mercury launched a stinging attack on a State Charter as an inappropriate way to guarantee human rights. Both arguments warrant a closer examination because they come from sources which continue to express strong support for human rights principles.
The Mercury made much of Tasmania’s transformation from having the most oppressive laws on same-sex relationships in Australia to having some of the fairest.
It believes this transformation shows Tasmania’s parliamentary democracy and civil society are strong enough not to need a Charter of Rights:
"Tasmania has an honourable record on progressive social legislation (like) establishing a relationships registry to give legal status to same-sex couples. This has been achieved through the Westminster system’s wonderful capacity for reform and renewal, without the need for a handful of lawyers to decide what is best. Where there have been wrongs that needed righting, such as discriminatory homosexual laws, it has been done with vigorous public debate."
Yes, public debate was critical to achieving reform, even if “vigorous” is a nice way of saying it was sometimes violent.
Yes, Parliament did finally assent to reform, even if it took 20 years, ten governments, eight bills, three public inquiries and numberless rallies, meetings, letters, badges and posters to get there.
But there have also been critical moments during Tasmanian gay rights debates which provide a compelling argument for a Tasmanian Charter of Rights, not against it.
One that comes to mind is the Salamanca Market protests that marked the start of the campaign to decriminalise same-sex relationships.
In August 1988 the Hobart City Council banned the then Tasmanian Gay Law Reform Group, together with its card table and gay law reform petition, from the council’s Saturday morning “family market”. The Group defied the ban, the police were called, and over seven consecutive Saturday mornings 130 people were arrested for staffing the stall, signing the petition or displaying support-posters with the words “gay” or “lesbian” printed on them.
There could be few more blatant examples of a public authority infringing the right of free speech, free assembly and freedom from discrimination. But Parliament did nothing to stop it, nor could outraged public opinion move an intransigent council.
In the end the council only backed down because the protests grew so large, and its legal authority was exposed as shaky.
Another critical moment in the gay law reform debate was a 1994 ruling from the UN Human Rights Committee that our former laws criminalising male-to-male sex with life imprisonment violated the world’s ultimate Charter of Rights, the International Covenant on Civil and Political Rights.
This was a watershed for the gay law reform movement. Before the UN decision, prejudice had consistently dominated public debate and obstructed reform. After, it was increasingly accepted in the general community that (even) gay people deserved basic human rights.
In particular, the UN decision gave the Federal Government and the High Court a mandate to step in and render the offending statutes inoperative and invalid.
Here The Mercury might interject and say that even though the outcome was fine the process proves charters of rights do in fact, to use its words, take “power away from the people and their elected representatives and towards a tiny group of judges”.
Not so. Gay law reform had already passed the Lower House twice. It had the support of a majority of Tasmanians. The only snag to reform was a coterie of born-to-rule Upper House members, some of whom were elected from tiny malapportioned electorates.
In this one example of where a Charter of Rights has impacted on Tasmanian law, power was taken away from the recalcitrant, unrepresentative few and given back to the people and the people’s House. Fittingly it was at the overwhelming behest of that House, and with the strong assent of the people, that the Legislative Council finally agreed to erase the old statutes three years later.
Clearly, today’s far-more-tolerant Tasmania owes much to the UN gay law reform decision and the UN Covenant upon which it was based.
Clearly also, Tasmania already has in that Covenant a de facto Charter of Rights.
This begs the question, why can’t we have our own home-grown Charter which allows Tasmanian human rights claims to be handled by Tasmanian courts within a framework set by Tasmanians.
It will show the world that we are mature enough to resolve our differences ourselves.
The third illustrative moment in Tasmania’s same-sex relationships debate brings us closer to the present and is a symbol of how much Tasmania had changed since the arrests at Salamanca - the passage of the Relationships Act in 2003.
That Act not only gave equal rights to same-sex couples. It also established Australia’s first civil union scheme, and the world’s first such scheme for the recognition of a wide diversity of personal unions. Tasmania now has the most progressive relationships laws anywhere.
The Mercury clearly thinks Tasmanians should be proud of this kind of social-justice leadership. But when it comes to a Charter of Rights it suddenly loses its nerve.
“Why not do it properly and draft a Bill of Rights for Australia?” it asks rhetorically, echoing the state government’s preferred excuse for procrastination - the need for “national consistency”.
Think for a moment about all those reforms often cited by The Mercury and the state government as examples of Tasmania proudly leading the nation and the world - the Hare-Clark voting system, daylight savings, comprehensive anti-discrimination protections, an apology and compensation to the stolen generation, smoking bans, and of course the decriminalisation and subsequent recognition of same-sex relationships.
Where would these reforms be if Tasmania had waited for national consistency?
Let’s take the example I’m obviously most familiar with, same-sex couple rights. The Commonwealth has yet to follow the states and territories down the path of recognising same-sex de facto partners. John Howard was largely indifferent to the issue and his successor, Kevin Rudd, isn’t in a great hurry either.
As for formal recognition, Rudd is as deeply opposed to same-sex marriage as Howard was. The former says he supports “national-consistency” on “Tasmanian-style” registries, but has no intention of actively pursuing this goal unless it’s as an excuse to block ACT civil partnerships with a version of Tasmania’s registry that is so watered-down as to be “the Tasmanian model” only in name.
The fact that meaningful formal recognition of same-sex partnerships is on the agenda in the ACT and Victoria is because Tasmania led the way, not because of platitudes about “national consistency”.
“National consistency” is just as much a euphemism for procrastination and mediocrity when it comes to a Charter of Rights. In the lead up to the federal election the then Opposition backed off its commitment to a national charter. Now that it is in government, at best it will set up a committee to conduct an inquiry, and return to the issue in its next term. When it does, you can be sure the ground-breaking Tasmanian proposals on enforceability and a wide range of rights will be submerged and lost.
The real dynamic for change is the same here as it is for relationship reform: a Charter found its way on to the Tasmanian political agenda because the ACT and Victoria bucked the national trend and led the way. Similarly, it will only make its way on to the agenda in other states and nationally, if Tasmania continues along the road to reform with its eyes set on the best Charter yet.
If, at this crucial stage in our local and national reform process, Tasmania ducks for cover behind “national consistency”, despite the high level of community support mentioned above, it will provide other states and the Commonwealth with the excuse they need to do little or nothing. It will also signal that an autumnal chill is bringing Tasmania’s summer of social reform to an end.
As you can see, I’m no fan of “national consistency”. Whether we’re talking about human rights guarantees, relationship law reform, surrogacy, fertility and parenting policy, school curricula, health-service delivery, workplace conditions, or any number of other areas of state policy-making, “national consistency” is a pernicious political doctrine designed not to elevate national public policy, but to reduce, blur and stymie progressive, local initiatives in the name of a national lowest common denominator.
“National consistency” is the mongrel child of Bob Hawke’s consensus politics and John Howard’s strident state-baiting nationalism. Like its forebears it allows Sydney-based socially-conservative elites to extend their influence across a continent whose political and cultural diversity and exuberance they despise, deny and want to destroy. For a self-described “socially progressive” small government like Tasmania’s to collude in this sham is nothing short of a betrayal.
Having stripped from the hands of The Mercury and the state government empty slogans like “drawing power from the people”, and “national consistency”, what we are left with is the perverse argument that Tasmania’s record of achieving social justice is an excuse for ignoring ways we might improve that record.
As I’ve argued, this is flawed because of a misunderstanding of Tasmania’s past achievements: some have been due to a Charter of Rights, none would have occurred if we had waited for others to match us.
But more importantly, it is flawed because it fails to consider how we should respond to the injustices of today and tomorrow.
There are still many legal and social injustices facing minorities. There are still many cracks in our democratic system through which powerless and vulnerable people can slip. There is still the potential for power to be exercised callously and without adequate restraint. Indeed, as our political, social and economic interactions grow more complex and globalised, so do the ways in which abuses can be perpetrated.
It is unethical to expect people disadvantaged by such abuses to rely on the machinery of Parliament, the good will of their fellow citizens, bureaucratic standardisation, or “vigorous public debate” to right the wrongs against them. They may be too powerless or the injustice against them too urgent or ubiquitous. If we truly value justice and want to see injustice addressed we must provide those who believe they are treated unfairly with another, more accessible and reliable way to make their claim.
The injustices we face today and will face tomorrow cannot be pinkwashed by a starry-eyed complacency over past injustices defeated. They demand ever more refined, improved and locally-relevant ways of creating a fair society.
They demand a Charter of Rights.
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