Laurie Ferguson (Werriwa, Australian Labor Party) Share this | Hansard source

The Human Rights (Parliamentary Scrutiny) Bill 2010 had its genesis in the human rights consultation undertaken by Father Frank Brennan—which involved a significant number of roundtables and 15 public hearings in every part of this nation, from the most remote parts of the country to urban areas—and Australia’s Human Rights Framework, which the minister announced in April this year.

It is worth noting that, despite the fact that the government did not take up some of the central themes of the consultation and that its response did not meet the expectations of some people who are active in this area, Alex Boxsell in the Australian Financial Review, in reporting the Attorney-General’s response, said:

Human rights groups have praised a federal government bill that will ensure legislation meets key international human rights treaties,

Father Brennan’s committee noted that Australia had a ‘patchwork quilt’ of human rights and made 31 recommendations. The Attorney-General responded by noting that many views on how human rights and responsibility should be protected had been expressed during that inquiry.

The main thrust of the legislation is to ensure that the legislation passed in this country recognises the significant number of international conventions that Australia has signed. Of course, we are well aware of this country’s groundbreaking role in the activities of the United Nations General Assembly in the period after the Second World War, in the Universal Declaration of Human Rights. The international conventions include the International Convention on All Forms of Racial Discrimination, the convention on civil and political rights, the Convention on the Elimination of All Forms of Discrimination against Women, the Convention on the Elimination of Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment, the Convention on the Rights of the Child and the Convention on the Rights of Persons with Disabilities.

The way in which it is contemplated that this will be acted upon is through a parliamentary committee and through the provision of reports from those responsible for the legislation that the suggested bill is in cognisance of those conventions. Also, importantly, there will be an education campaign, which will essentially concentrate on the Public Service. As people say, they can certainly be controlled by other provisions, but it is obviously desirable that there be more recognition of how actions affect individuals and the degree to which they correspond to the conventions that this country has signed.

It has been a long road to achieving this measure. If we look at history since Federation, we see there were endeavours by Gareth Evans and Lionel Bowen, there was the 1967 referendum, there was the Human Rights Bill of 1973 and earlier convention in the early post-war years, and there was a failed referendum in the late forties. It is understandable that this is an area of some controversy. People are wary of signing up to conventions that they see, in some senses, as beyond our country’s control. We look at Europe and see the debate over the European Community and the reluctance of the United Kingdom, in particular, to sign up to those conventions. We see continuing debates in different countries, most recently in France over its treatment of Roma, and the situations in some of the Eastern European countries with regard to human rights at the moment. It is understandable that some people see any kind of movement in this direction as an erosion of national sovereignty. Equally, without taking a leadership role in some of these conventions, Australia will not have the international influence to accomplish outcomes similar to ours for people in countries where they do not have internal processes that work towards guaranteeing these rights.

In his April response the minister also indicated that there was a move toward streamlining legislation into a single comprehensive act and that the Standing Committee of Attorneys-General would look into the feasibility of a national harmonisation of the nation’s antidiscrimination laws. On antidiscrimination, I note the contribution of the member for Banks in indicating that, both under the Labor Party and under the current opposition when they were in government, racial discrimination and whether legislation properly complies with UN conventions has been an area of great question.

Whilst we make this movement forward, it is important that we ensure the committee is properly resourced and that the reports by various ministers and others responsible for a particular bill are not just pro forma and do not just go through the motions but are a thorough analysis of the degree to which the legislation coexists with and respects international conventions.

I for one do not share the great confidence in the judiciary of many of my colleagues in this House. I think on balance that this is probably not as controversial and weak an outcome as others might think. I have a degree of reticence with regard to the judiciary. I actually believe it is often more politicised than many members of this House think. You have to have a look at a few US patterns. For instance, when Franklin Delano Roosevelt was having difficulty with labour legislation and industrial standards in the United States, the Supreme Court judges there decided, ‘Let’s get a bit more liberal with regard to the government’s legislation.’ All of a sudden, judges thought that bills that had been knocked back for the previous few years did conform to the US Constitution. It is an example that shows there is a question as to whether we can always trust in judicial decisions in this area.

Another good example recently is Citizens United v Federal Election Commission in the United States. In a five-four vote—very close and, once again, a case where the votes of all the judges were predictable on conservative/liberal lines—the judges decided there was no way in which the McCain-Feingold legislation, otherwise known as the 2002 Bipartisan Campaign Reform Act, could limit spending by large corporations and unions, which had been the intention of that legislation. It was struck down because it supposedly was prohibited under the First Amendment of the United States Constitution. The same people, of course, in recent years managed by a similar of partisan majority—clearly along the same lines, though a few people changed in the interim—to make the very controversial decision with regard to the Gore/Bush election.

I think I might be one of the few people in this House who will not be losing too much sleep or crying late at night about the fact that we have a provision that means that the parliament will have more say in this process. Members of parliament will have a committee which will review the legislation. That is a fairly open process. It is something that is transparent to the Australian people. The committee in its consultations was very much of the view that we should legislate for a bill of rights. I know that there are very strong sentiments in the electorate from a significant number of interest groups about going that way, but I do not really think it has been that significant a loss that we did not.

I believe that this will be a way in which we will genuinely make significant progress. We know that often there is not a consideration of the way in which conventions are impinged upon by legislation. There is a lot of controversy in the immigration field. There have been a variety of cases around the question of the exclusion of parents from Australia and impacts upon the Convention on the Rights of the Child. That has been somewhat controversial on occasion, but it is a good example of legislation which has gone through the House before and which probably did not gain enough interest of members with regard to its adherence.

I recommend the legislation. It is, in a sense, not the victory that many of the Labor governments in past decades, many of them crusaders in this issue, would have expected, but there has been a history of defeats of referendums around this issue. I note that the committee commissioned in the inquiry some independent research which showed that there were a significant number of people—37 per cent, I think—who did not have an opinion and were neutral. Of those who had an opinion, approximately 80 per cent were supportive of a bill of rights. I am not too clear tonight as to how that question was fashioned, but it is an indication that without a campaign against it, which is an important factor, there was broad support for a bill of rights. I commend the legislation.

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