Hours before the National Human Rights Consultation Report was released on Thursday morning, I was listening to talkback radio in a rural area. The topic was the infamous Black Faces performance on Channel 9's Hey Hey It's Saturday the previous night.
Four out of five callers could not understand what the fuss was about. But one caller, who identified herself as a Koori, expressed alarm. She felt her hard won equality with other Australians was questioned by the Black Faces segment, and its apparent acceptance by the large majority of Australians.
A basic understanding of a human rights charter is that it shifts the human rights law making centre of gravity from politicians to the judiciary. Depending upon how it was formulated, a charter might give more grounds on which judges could decide whether proposed legislation was consistent with other legislated rights. Currently this is the task of political leaders, who would still be responsible for the drawing up of legislation that would be subject to judicial scrutiny.
It is worth considering, in general terms, the fate of a hypothetical proposed law that would impose sanctions on the licence of a broadcaster putting to air offensive material such as the Black Faces segment.
Politicians would base their decision on whether to support the law, on what the majority of Australians wants. That is their job. They would listen attentively to the radio talkback and do their best to follow the wishes of the four out of five callers who were indifferent to the Black Faces sketch or who thought it was funny. They would reject the proposed law.
Under a human rights charter, scrutinising judges would pay closer attention to views such as those of the Koori caller. They would cross examine representative Indigenous Australians to ascertain if the Black Faces performance did in fact contribute to the erosion of their right to be considered equal to all other Australians. They might then approve the law that would penalise Channel 9.
In such circumstances, there would of course be pressure on the judiciary to follow public opinion, or that of politicians. One possible illustration comes from another television comedy act that was deemed to have breached standards, the Chaser's Make a Wish Foundation skit from last June.
The ABC's own review processes approved the segment before it went to air, though management and the Chaser failed to anticipate the public response. The Chaser team maintains to this day that it was misunderstood by the public. It was intended as a parody against unthinking charity. The withdrawal of the segment, and the ABC's apology for it, was a capitulation to the public outcry. The socially constructive statement was lost, and unthinking charity won the day.
The implication for any version of a Human Rights Charter that could be introduced in the wake of the Consultation is that judges would need to act courageously and keep public opinion in perspective. The quality of judges Australia has had in recent years gives us cause for optimism.
Feature letter:
We're not racist, we're just havin' a larf!
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Michael Mullins is editor of Eureka Street.