3.5 Protective (a) Marginalised and vulnerable people and groups The true measure of any society can be found in how it treats its most vulnerable members.105 The consequences of Australia’s lack of legal human rights protections acutely affect people who experience disadvantage, marginalisation and discrimination. It is the most vulnerable people who can fall through the cracks in the existing frameworks. • Overlooked in lawmaking Parliamentarians are largely concerned with the will of the majority population that makes up the voting public. Parliamentarians propose laws that are generally applicable to the population, debate issues that are of most concern to constituents and vote along party lines. As a result, the rights of socially excluded members of the population, minority groups, or those excluded from participating in the electoral system (such as children and migrants), may not be properly considered by Parliament. Leaving human rights entirely to the domain of Parliament means that those who most need human rights protections may be overlooked – or even scapegoated – by parliamentarians and the general voting public.106 Parliamentarians may advocate for and pass legislation that limits the rights of marginalised groups in order to score political points with the broader population. The Hon Jim McGinty observed that From time-to-time legislators are tempted to bring in legislation which deals harshly with marginalised or unpopular people so that the politician will look ‘tough’ in the eyes of the community. This is frequently the case when laws deal with indigenous people, asylum seekers, prisoners, criminals and others who are not seen as ‘mainstream’. Such legislation 86 has a detrimental effect on the community in two ways. Firstly, the human rights of all are debased, and secondly, the community becomes accustomed to accept human rights breaches as normal and acceptable.107 As discussed above, Parliament has voted to suspend existing human rights. This occurred in 2007, when the Racial Discrimination Act 1975 (Cth) was suspended and the NTER introduced. The Law Council noted that Parliament’s willingness to ignore or impinge on human rights means that the [human rights] system only applies at the discretion of parliament, which is highly problematic when parliament is the organ of the law from which protection is needed.108 Because the affected groups are in the minority, and do not have a strong voice in the public discourse, many Australians may not even be aware of the extent of the human rights problem, and are therefore less likely to put pressure on their elected representatives to act. Sometimes public pressure will result in Parliament making changes to laws that better protect vulnerable and minority groups, but these changes often occur belatedly, after significant damage may have been done. For example, it was only in 2013 that federal law made it unlawful to discriminate against a person on the basis of their sexual orientation, gender identity or intersex status.109 This law still allowed the prevention of same-sex marriage, which only became lawful in 2017. Until Parliament decided to change the law, LGBTIQ+ Australians could not marry. They may have also faced different legal and financial treatment with no avenue for challenge. Prior to the amendments, a legal right to equality and non-discrimination in a Human Rights Act would have provided stronger protections for same-sex couples and families.