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Does Australia need a human rights code?

Australia is the only Western democracy where human rights are not formally protected, either by law or by the Constitution. Minorities, elderly, and disabled want a human rights charter. But a proposal for a charter has unleashed fierce opposition from church groups and opposition politicians.

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A proposal to enshrine human rights in Australian law has unleashed fierce opposition from church groups, who say it would undermine religious freedoms, and opposition politicians, who say it would politicize the judiciary.

Australia is the only Western democracy where human rights are not formally protected, either through legislation or in the Constitution. A government-appointed committee, set up after Prime Minister Kevin Rudd’s Labor Party came to power in 2007, has just completed a national consultation process that found strong community support for a human rights act or charter.

But many religious leaders worry that such legislation would expose organizations to charges of discrimination if they chose to employ people of a particular faith. Other critics, including opposition politicians, claim that it would transfer decisionmaking powers on sensitive issues such as abortion and gay marriage from Parliament to unelected judges.

Under the proposed “dialogue model” of a charter, already in force in Britain and New Zealand, senior judges could declare a law “incompatible” with human rights and refer it back to Parliament – though politicians would not have to amend it.

“The model is ... respectful of the proper sovereign role of Parliament in making laws for the nation,” says Catherine Branson, a former judge and president of the Australian Human Rights Commission.

Government gets 35,000 letters

The government has yet to respond to the report of the committee that conducted the consultation. Chaired by a Jesuit priest and law professor, Frank Brennan, it received more than 35,000 written submissions – the largest number ever for a national consultation. Those who feel their rights are under threat include indigenous Australians, the homeless, people with disabilities, those living in remote areas, and the elderly.

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