Michael Keenan (Stirling, Liberal Party, Shadow Minister for Justice, Customs and Border Protection) Share this | Link to this | Hansard source

I rise to speak on the Human Rights (Parliamentary Scrutiny) Bill 2010 and the Human Rights (Parliamentary Scrutiny) (Consequential Provisions) Bill 2010. These bills arise from the government’s response to the report of the National Human Rights Consultation. The most significant aspect of the government’s response was its abandonment of its earlier support for a bill of rights, which was a capitulation to the opposition’s criticism of that proposal, and its adoption of the more modest proposal put forward by the opposition.

The coalition’s submission to the National Human Rights Consultation recommended the establishment of a parliamentary committee to consider legislation from a human rights point of view. The following is the relevant portion of the coalition’s submission:

…the Opposition urges the NHRC to recommend against the adoption of a statutory bill of rights as its preferred model. Instead, the Opposition recommends that expanded Parliamentary scrutiny of legislation from a human rights point of view is a better alternative. The option we propose has the advantage of locating greater emphasis on human rights at the heart of the political system itself, while it is free of the potentially undemocratic consequences of placing unprecedented power to resolve essentially political questions in the hands of the judiciary.

       …         …         …

Specifically, the Opposition invites the NHRC to consider recommending the establishment of a new Parliamentary Committee (either a Joint Standing Committee or a Standing Committee of the Senate), which would be given the specific task of considering legislation from a human rights point of view.

The new parliamentary committee would be able to examine legislation and conduct broad inquiries relating to human rights referred to it by the Attorney-General of the day. Its operation would be similar to that of the Joint Standing Committee on Treaties.

The purpose of statements of compatibility will be to inform parliamentary debate and, where appropriate, to justify restrictions or limitations upon rights where those restrictions are in the interests of other individuals or society more generally. The requirement to include statements of compatibility for disallowable instruments extends the responsibility for such statements from the committee to the executive. The workload and cost implications of this should be considered by the Senate committee.

Notwithstanding the fact that the bill reflects coalition policy, there are serious concerns about a broad definition of ‘human rights’ being derived from seven international instruments and the possible introduction, by the back door, of those instruments into Australian domestic law. The coalition supports in principle the establishment of the parliamentary committee; however, it holds concerns about the balance of the legislation, particularly in the definition of human rights.

Contrary to the approach taken in this bill, the rights which are routinely considered and applied by the courts and which govern—very successfully—the relationships of Australians with each other and their governments are those to be found in the Constitution, the statutes of the Commonwealth and the states, and in the common law. It is a fact that the principles underpinning and deriving from those traditions have informed the international conventions, rather than vice versa. The great and abiding traditions arising from these sources must find expression in these bills if the committee is to do its job.

As noted in the bill’s explanatory memorandum:

Part 1 of the Bill deals with preliminary matters including commencement and definitions. The Bill will define ‘human rights’ as the rights and freedoms recognised or declared by the seven core United Nations human rights treaties as they apply to Australia. These treaties are:

• International Convention on the Elimination of All Forms of Racial Discrimination
• International Covenant on Civil and Political Rights
• International Covenant on Economic, Social and Cultural Rights
• Convention on the Elimination of All Forms of Discrimination against Women
• Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
• Convention on the Rights of the Child, and
• Convention on the Rights of Persons with Disabilities.

Part 2 of the bill establishes the Parliamentary Joint Committee on Human Rights and sets out the functions and administrative arrangements for the committee. The intended functions of the committee include examining acts, bills for acts and legislative instruments to check that they are compatible with Australia’s human rights obligations. The committee will report to both houses of parliament. The committee will also inquire into matters relating to human rights that are referred to it by the Attorney-General.

Part 3 of the bill will introduce the requirement for statements of compatibility to be prepared for all bills and legislative instruments subject to disallowance. This statement of compatibility must assess whether the bill or legislative instrument is compatible with the human rights in the seven core United Nations human rights treaties. Part 4 of the bill deals with miscellaneous matters and enables the Governor-General to make regulations.

The Human Rights (Parliamentary Scrutiny) (Consequential Provisions) Bill 2010 contains the consequential amendments to the Legislative Instruments Act relating to statements of compatibility. This bill also contains amendments to the Administrative Appeals Tribunal Act 1975 to include the President of the Australian Human Rights Commission as an ex-officio member of the Administrative Review Council, as announced under the Human Rights Framework and related amendments.

In conclusion, as the Senate Standing Committee on Legal and Constitutional Affairs is to report on the bills on 7 December, the coalition reserves the right to move amendments if necessary. With that reservation, I commend this bill to the House.

Chris Hayes (Fowler, Australian Labor Party) Share this | Link to this | Hansard source

I rise today in full support of the Human Rights (Parliamentary Scrutiny) Bill 2010 and the Human Rights (Parliamentary Scrutiny) (Consequential Provisions) Bill 2010. During my years in this House I have been a strong advocate for protecting and promoting human rights, both in Australia and overseas. I have devoted particular attention to the abolishment of the death penalty, as I strongly believe there is no greater human right than the right to life. Deputy Speaker, you will recall that I have spoken on many occasions about a number of Australians currently on death row in Bali. I do not wish to intervene in another country’s criminal jurisdiction, but one thing I have been passionate about is the application of their human rights—their right to life. I will keep on that campaign knowing full well that the appeals of Scott Rush, Andrew Chan and Myuran Sukumaran have been heard and that we eagerly await the final determination of the Indonesian court. I understand that these bills do not specifically relate to the death penalty; however, they do play an important role in enhancing Australia’s human rights obligations.

These bills implement the legislative aspects of Australia’s Human Rights Framework, which was announced by the Labor government in April this year. The framework is based on five key principles and focuses on: reaffirming a commitment to our human rights obligations; the importance of human rights education; enhancing our domestic and international engagement on human rights issues; improving human rights protections, including greater parliamentary scrutiny; and achieving greater respect for human rights principles within our communities.

The bill defines ‘human rights’ as the rights and freedoms recognised or declared by seven core United Nations human rights treaties, as they apply to Australia. These seven treaties relate to a variety of areas, including the rights of the child, civil and political rights, as well as economic, social and cultural rights. Reading through these treaties, I am very proud to say that Australia meets all of its obligations and requirements, and always has. Only a couple of weeks ago I stood in this place and drew attention to the fact that Vietnam ratified the international bill of human rights as far back as 1982—perhaps for trade based purposes—but their human rights record, I am afraid to say, remains questionable. Australia takes pride in the freedoms that it enjoys through its democracy. Australia has always attempted to live up to its international obligations, particularly with respect to human rights. This legislation is designed to ensure that that occurs on every occasion.

The government draws its definition of ‘human rights’ from three treaties I am particularly supportive of and passionate about. These are the International Convention on the Elimination of All Forms of Racial Discrimination, the Convention on the Elimination of All Forms of Discrimination against Women and the Convention on the Rights of Persons with Disabilities. November 25 is United Nations White Ribbon Day—an international campaign to raise awareness about preventing violence against women. Deputy Speaker Georganas, you spoke about White Ribbon Day today and I want to thank you for taking the time to speak so passionately on that private member’s motion.

The International Convention on the Elimination of All Forms of Racial Discrimination is one treaty that I imagine the constituents in my electorate of Fowler would most welcome. My electorate is a melting pot of cultures. It has the highest proportion of people born overseas of any electorate in this country. Nearly 70,000 people, 49 per cent of people, in the current electorate of Fowler were born overseas. These migrants know all too well the importance and the joys of living in a country free of racial discrimination. Even though I am sure the majority of Australians are open-minded and are happy to welcome people from different backgrounds, asserting our commitment to the religious and cultural freedoms that flow from these bills will never go astray.

Similarly, rights and freedoms declared in the Convention on the Elimination of All Forms of Discrimination against Women are close to my heart. During my time in this parliament, I have spoken on many occasions on what can only be described as the worst form of discrimination and that is violence against women. Probably the worst form of human rights abuse, the most prolific form of human rights abuse and the most widespread form of human rights abuse in the world is violence against women. Sadly, thousands of women and girls are abused in their own homes on a daily basis.

We all share a responsibility for effectively addressing this sad reflection of modern day society. I am particularly proud that this government is playing a worthwhile and leading role in addressing that. I also assert that all those organisations active in our electorates to draw attention to the abuse of women and children do such splendid work. The White Ribbon Day organisation has drawn considerable attention to this particular issue. As I have said, the most prolific and widespread area of abuse is the abuse against women. As we approach 25 November, we should not simply pledge our support for women but do as much as we can to stop this scourge of a modern day society. It is something about which we cannot be proud. It does not require legislation to do something; it requires a considerable change in an attitude that constructs an environment where such abuse goes either unreported or ignored.

The other treaty which I strongly advocate is the Convention on the Rights of Persons with Disabilities. My electorate lies in the outer metropolitan area of Sydney. While the south-west of Sydney is a great place to live, it is an area which is overrepresented by people with disabilities. That occurs for a whole lot of reasons, but the most likely reason is that the land where we live in the south-west of Sydney is more affordable. People that live in families with disability obviously find it is very expensive. These families need to make compromises and inevitably that involves where a family can live. The areas particularly around Miller, Liverpool, Cabramatta and the like in the south-west of Sydney are overrepresented by persons with disability. As I understand it, some 52 per cent of all families in New South Wales that live with autism are to be found within a 25-kilometre radius of Liverpool. That is a particularly chilling statistic, but it does show the dimension of disability within our community.

The freedoms contained in this convention, from which we define human rights in this bill, should never be undervalued or forgotten. By relying on this convention to form part of the definition of human rights, we as a nation affirm the need for persons with disabilities to be guaranteed full enjoyment of their lives without discrimination. We are emphasising the importance of mainstream disability issues as an integral part of relevant strategies in sustainable development. We are also recognising that discrimination against any person on the basis of disability is a violation of the inherent dignity and worth of a person.

I congratulate the Gillard Government for incorporating these principles and freedoms in our definition of human rights. The Human Rights (Parliamentary Scrutiny) Bill 2010 also allows for the establishment of the Parliamentary Joint Committee on Human Rights. This committee will examine and report to the parliament on the compatibility of bills and legislative instruments with Australia’s human rights obligations under the seven core international treaties I referred to earlier. It will also inquire into and report to the parliament on any human rights matters referred to the committee by the Attorney-General. This bill also introduces a requirement for statements of compatibility for all pieces of legislation brought before this parliament. These statements will leave communities and parliamentarians in no doubt as to whether the bill is compatible with our human rights obligations as set out in those seven core United Nations treaties.

The establishment of this committee and the requirement for statements of compatibility send a strong message to the Australian people that this government is serious about ensuring the protection of all our human rights. These measures also give Australian citizens a greater capacity to comment on new laws and to engage with the committee on how they will be affected by the proposed legislation. It will always be the responsibility of the parliament to ensure it has an open dialogue with the Australian people and this bill ensures that that occurs. It also sends a very powerful message to our international neighbours as to our firm commitment on human rights and that this country is cemented to the view of doing everything it can to ensure that all its rights and obligations are lived up to. Further, the Human Rights (Parliamentary Scrutiny) (Consequential Provisions) Bill 2010 allows for small changes to the Administrative Review Council to ensure that there is a human rights perspective integrated into the view of the council.

The new measures contained in the bill represent an improvement to what is already a sound parliamentary system in which human rights are championed and defended by all sides of this parliament. Australia is well served by a healthy parliamentary democracy in which people not only have but regularly exercise their right to change governments in order to effect policy outcomes as desired by the people. This democracy, the power of the people to determine government, has protected this country from unfair laws in the past and I am sure it will continue to do so in the future. With these sentiments in mind, I commend the bills to the House.

Steve Georganas (Hindmarsh, Australian Labor Party) Share this | Link to this | Hansard source

I move:

That the debate be adjourned.

The question is that the debate be adjourned. There being more than one voice calling for a division, in accordance with standing order 133(b) the division is deferred until 8 pm.

Luke Simpkins (Cowan, Liberal Party) Share this | Link to this | Hansard source

I am very happy to take this opportunity today to speak on the Human Rights (Parliamentary Scrutiny) Bill 2010 and the Human Rights (Parliamentary Scrutiny) (Consequential Provisions) Bill 2010. Looking back over the recent history of matters concerning human rights, I acknowledge the many groups and individuals who were so persuasive and ultimately successful in defeating the case for a legislative human rights charter for Australia. As the Attorney-General said earlier this year, such a charter would have seen the entrenchment of great division in our nation and, in my view, the excessive involvement of the judiciary in what is the business of elected representatives across the length and breadth of this nation. There can be no doubt that we who are elected to this parliament are in a far better position to determine what is best for Australia than a narrow profession representing in the main only the highest socioeconomic communities in the inner cities of Australia.

I would also make mention of another part of the Attorney-General’s speech at the National Press Club in April. This is a point I wholeheartedly agree with and I have said so in this place on many occasions. That point is that with any acknowledgement of rights there is also an acknowledgement of responsibilities of citizens and residents. I will return to that point later.

I do not think that there is a problem with the abuse of human rights in this country. I think that we are pretty much at the top of the ladder internationally. No doubt others would disagree. Perhaps some would say that detaining those that come by boat illegally are having their human rights infringed upon by being detained. I would say: let them apply offshore, the right way, and then there will not be the need to detain them. I say let them join the queue and not jump the queue, and then perhaps the suffering of legitimate refugees in refugee camps around the world will not be as long. What about the human rights of those that are in those camps? They do not have the money to fly to the people smugglers and then pay them. Without labouring the point any longer, I reiterate that in this country we do not have a human rights problem, not like so many other countries around the world. I would also make the point that I do not think the government should be so ready to submit Australia to the judgment of the United Nations on human rights matters when those that seek to judge us are behind us in this field. I note the member for Fowler made reference to Vietnam before, and I think, despite Vietnam’s ratification of various conventions, they have a very long way to go on the matter.

I would, however, prefer now to speak more on purely domestic issues. In the Attorney’s speech in April, he made mention of systemic issues in some broad relationship to human rights. He mentioned promoting of the equality of women, ensuring the rights of older people, protecting our children and ensuring that all members of our society, including those with a disability, have the maximum ability to participate in all aspects of Australia’s economic, social and political life. He said that there is also much still to do to address Indigenous disadvantage and issues such as domestic violence and child abuse. The Attorney-General said that these issues all relate to creating a decent and inclusive society. This is an aspiration summarised neatly in the great Australian expression of ensuring ‘a fair go’ or, commonly, ‘a fair go for all’. That is what he said.

There are two points that I seek to make in reference to the points that he made. Firstly, Australians in general do not like special deals. It may be the left-wing political ideal that idolises quotas, affirmative action and other forms of special support for specific groups in society to the exclusion of the majority, but the vast majority of Australians believe that the role of government is to place the opportunity before the individual and allow them to take up that opportunity. My view, and I am sure it is the view of so many in this country, is that governments are responsible for taking the obstacles out of the way but the individual must still compete. It comes back to drive and commitment. It comes back to initiative and innovation. It should not be about special deals and quotas.

A case in point, if I can be so bold, is our new colleague the member for Hasluck, an Indigenous man who has been elected not because of some quota system or special arrangements but because he worked hard, he has a wealth of excellent experience, he is very, very smart and in the end he was clearly seen by the people of Hasluck as the best person for the position. The point is that if men, women, Indigenous people, people of ethnic origins et cetera are underrepresented in sectors of society such as politics, teaching, business or emergency services then it is the role of government to remove the obstacles and allow individuals to achieve their potential, not to promote when there is not the required ability, just on the basis of improving the numbers. This is where socialism always fails, because government manipulates the ability of individuals to achieve their potential and stifles maximum individual achievement and therefore the overall maximum benefit that society achieves.

The other point that I wanted to make is about domestic violence and abuse. There are a number of parts to such problems. There are, of course, the perpetrators of these evil crimes. There are, sadly, the victims of such crimes. There are the people that knew about these crimes and took action, and there are those who knew or suspected but did not act. There are the police who enforce the law, the legal system that judges and of course the services that pick up the pieces afterwards, such as the various child welfare agencies. In recent years there has been a lot of discussion about the failings of these welfare agencies, and clearly there have been issues. I would prefer that they acted more quickly and took children to safety more swiftly and more permanently in many cases. However, for all the failings of these agencies we should never forget the origins of these crimes. The perpetrators are the bad people here, and anyone who knew and did not act shares a lot of the blame. They are the people that were responsible in the first place for children being attacked or subjected to other forms of crime in this area and we should never lose sight of that fact.

These points being made, I return to the bills. I support the coalition’s position that, rather than have a destructive bill of rights, this more modest approach of expanding parliamentary scrutiny of legislation from a human rights point of view is a far better and more appropriate position. Human rights is a matter for the law-makers first and foremost. These are political questions and therefore this is the right approach. This was the coalition’s view in our 15 June 2009 submission to the National Human Rights Consultation, and I am pleased that this main bill is what we wanted. That being said, the scope of the term ‘human rights’ is something that will need to be very clearly defined if the government wants the support of the opposition. That is why these bills should be referred to the Senate Legal and Constitutional Affairs Legislation Committee for closer analysis, in order to get this right.

I would also take some time to mention the views of two of my constituents, Paul and Jan Davies. They are greatly concerned by one embodiment of these human rights matters, the so called antidiscrimination laws, and how the interpretation of those laws by the judiciary has in some cases become discriminatory itself. The point is that we should safeguard freedom of speech as a principle of our democracy and not call it discrimination—for instance, when commenting on other religions. I am of course not referring to any incitement to violence, but it should not be something for a court hearing if comments are made publicly about another religion. I support this view of my constituents.

The Davies gave me a document from the Australian Christian Lobby which described how a Christian ministry recently had its television program taken off Channel 10 because of a single complaint about an episode which adversely mentioned homosexuality. The Australian Christian Lobby itself has made the point that a Christian youth camp was fined $5,000 for determining that it would not rent its facilities to a gay youth support group. That was done under Victorian equal opportunity law.

What these cases show is that in these human rights related laws the way in which property is allowed to be used by the owner of that property is now, potentially, to be determined by courts. This is a very concerning situation and one that this parliament should be on guard against supporting or allowing to happen. This sort of conflict with the right to freedom of conscience, religion and belief would no doubt be to the detriment of churches and religious organisations, and any attempt to interpret exemptions narrowly will be a negative outcome.

I have spoken about the wider issues, as well as local concerns, regarding the problems that surround blind obedience to the concept of human rights, and particularly where there is little regard for the consequences of such blind obedience, but I have great faith in the existing laws of this parliament to ensure that the rights of our citizens are protected.

I will finish where I started and in territory often visited before in my speeches. The reality is that there are a small number of people in Australia who are very keen to demand their rights. They are in contrast to the vast majority of Australians just getting on with their lives and doing the right thing. It appears that most of those out there demanding their rights seem aggrieved by some injustice that they perceive has been perpetrated upon them by society. The problems they face are never their fault; always someone else is at fault, the system is at fault or they are unlucky. Never is blame or fault at one’s own front door with such people. So they never see the opportunities in themselves for their own success; they never see their own strength to change their lives for the better.

I would always say that before we ask for our rights as citizens and residents, we should ensure that we have fulfilled our responsibilities. Personal responsibility and therefore good citizenship is the best guard to a free and fair society. Perhaps that is the approach we should focus on first and then legislation can be next. I nevertheless look forward to seeing how these bills will work once they have been passed.

Graham Perrett (Moreton, Australian Labor Party) Share this | Link to this | Hansard source

I rise to speak in support of the Human Rights (Parliamentary Scrutiny) Bill 2010 and its related bill. This bill delivers three key improvements to Australia’s approach to improving human rights for all. Firstly, it establishes the Parliamentary Joint Committee on Human Rights. Secondly, it introduces a requirement for statements on compatibility on human rights to be presented to parliament for all bills and legislative instruments. And, thirdly, the bill clearly defines human rights as the rights and freedoms recognised under the seven core United Nations treaties.

Before I go on to further consideration of the bill, I would particularly like to commend the chair, Frank Brennan, and the rest of his National Human Rights Consultation Committee for the great work they did in consulting with the Australian people about human rights. We have heard a meandering range of views opposite on human rights. Some people have seemed quite fearful about human rights, whereas others in the parliament seem quite embracing of them. But I do not think anyone could question the great work done by Frank Brennan in taking the information out to the people of Australia.

There were something like 35,000 submissions, and I think about 34,000 of them came through my office! It was certainly a topic that generated a lot of discussion and debate in my electorate, as well as throughout Australia, and it was great to see those 65 roundtables in over 50 locations across Australia. It is great to see Australian people turning out to talk about this wonderful democracy of ours—about what democracy, fairness and justice mean and what should be the vision for this nation. Rather than just staying home and watching TV, people cared enough to go out to these town hall meetings. So I particularly commend Frank Brennan and the rest of his team for the great work they did.

As we consider this bill, which is really about seeing legislation that comes through this House through the human rights microscope, I think it is helpful to consider just how far we have come in Australia in our approach to human rights. The first, and probably the most significant, wrecking of human rights in Australia was 222 years ago when Indigenous people were dispossessed of their land in 1788, via the loose legal fabrication of terra nullius. It is interesting that we associate the name Frank Brennan with our current consideration of human rights because certainly his father, and he as a barrister, were instrumental in unpicking that fabrication of terra nullius back on 3 June 1992.

A long battle for human rights has ensued ever since that first dispossession in 1788. This battle for Indigenous human rights has included the battle for the right to vote, the right to live on whichever side of the street they choose to, the right to marry the person whom they love, the right to native title on their land and the right to the same health and economic opportunities as whitefellas. Indigenous people were not excluded from voting under the Australian Constitution—a copy of which you can see up on level 2—but after enough Commonwealth officials told the Indigenous people that they were not allowed to vote, following Federation, they started to believe it. Besides refusing new enrolments, misinformed officials also illegally removed Indigenous people from electoral rolls.

It was the Menzies government that officially gave the Commonwealth vote to all Indigenous people in 1962. Following that, at the referendum in 1967 nearly 91 per cent of people voted to recognise Indigenous people in the census. I will not talk about the nine per cent and how they voted, but it was pleasing to see how the 91 per cent voted. I am pleased that the Prime Minister has started us on a journey towards formally recognising Indigenous people in the Constitution.

On other human rights issues, Australia was one of the first countries in the world to give women the right to vote and stand for election, doing so in 1902. Deputy Speaker Georganas, as I am sure that you well know, South Australia was the first legislature in the world to give women the right to vote, but the nation of Australia was pipped by New Zealand—yet again. Progress for women’s rights has been slow since then but we are on the cusp of the introduction of a paid parental leave scheme—not far off it at all. That will be fully funded by the federal government. We have a female Prime Minister, a female Governor-General, a female Deputy Leader of the Liberal Party and, in my state, a female Premier and a female Governor. So there has been progress on that front.

Let us look back a few years earlier to Federation and 1901, a year in which Prime Minister Edmund Barton introduced, as one of the first acts of the new Australian parliament, the Immigration Restriction Bill 1901. And human rights took another hit in Australia. This bill was passed into law with virtually unanimous support and became the White Australia policy. As he introduced the bill, Prime Minister Barton shamefully argued:

The doctrine of the equality of man was never intended to apply to the equality of the Englishman and the Chinaman.

These shameful, racist sentiments, I must admit, were also present in the formation of the Australian Labor Party, which organised unashamedly in rural Queensland against the endeavours of Chinese and Kanaka workers. The White Australia policy was gradually dismantled after World War II and formally abolished by the Whitlam government in 1973.

I list some of the challenges that Australia has faced on human rights to make the point that you do not need to be in Burma—Myanmar—the Republic of Congo or suffering under sharia law to fall short on human rights. I understand that many of our failings came in different times and were made by well-meaning people. However, our challenge today is to ensure that Australia has a system in place that protects the human rights of all people, and we must certainly ensure that the mistakes of the past do not happen again.

More recently, Australia has been challenged to uphold the human rights and dignity of asylum seekers who come across the sea. I welcome the recent announcement by the Prime Minister that children and their families will be removed from immigration detention. During the last parliament we made a lot of progress in terms of giving same-sex couples equal recognition when it comes to superannuation and some other discriminatory areas of legislation. I hope that this parliament will continue to respond to our shortcomings on the rights of same-sex couples and particularly their right to have their relationship celebrated, recognised, and protected under the same laws that exist for opposite-sex couples. There is also much more progress to be made in advancing the human rights of Indigenous people. There is still more to be done to ensure that all Australians have that basic human right of food and shelter.

These bills introduce a requirement for statements of compatibility to be prepared for all bills and legislative instruments. It must assess whether a bill is compatible with human rights. Already, ministers or any member introducing a bill are required to declare, where relevant, the financial impact, the family impact and the regional and rural impact of that legislation. These measures have ensured that the parliament can easily weigh up how a bill will affect these areas. In the same way, the human rights compatibility statement will ensure ongoing consideration of human rights issues in policy development and law-making—and parliamentary debate, for that matter. These statements will assist the courts by helping explain the purpose and intent of legislation. And, where appropriate, the statements may need to justify restrictions or limitations on human rights. If we look at the recent High Court decision about the offshore processing of asylum seekers or the court decision on the South Australian legislation regarding motorcycle gangs, we can see the prism through which the courts view these things, so this will not be a huge leap.

To add further parliamentary scrutiny, these bills will create the Parliamentary Joint Committee on Human Rights. The parliament already does some very good things to promote awareness of human rights issues around Australia and around the world. I think particularly of groups like the Parliamentary Friends of the United Nations, the Parliamentary Friends of Red Cross and the Parliamentary Friends of Amnesty International. I am a bit biased, as I am co-convenor of the latter, but all of these cross-party groups have been helpful in getting human rights issues front and centre in the minds of members and senators. The Parliamentary Friends of Amnesty International met together last week to hear from Dr John Pace from the United Nations about the global phenomenon of irregular people movements and other human rights challenges which confront Australia. The new joint committee will have a different focus. It will examine legislation for compatibility with human rights and then report to the parliament. It will have the same powers as other parliamentary committees to hold inquiries, to seek submissions, to hold public hearings and to examine witnesses. It will have a very powerful gate-keeping and scrutiny role. The committee will help to ensure that our laws reflect our human rights obligations. These bills are practical measures to tighten the parliament’s focus on human rights. I commend the bills to the House.

Laura Smyth (La Trobe, Australian Labor Party) Share this | Link to this | Hansard source

I rise to speak in favour of the bills before the House this evening, the Human Rights (Parliamentary Scrutiny) Bill 2010 and the Human Rights (Parliamentary Scrutiny) (Consequential Provisions) Bill 2010. I note that the member for Moreton has spoken of positive and negative occurrences in Australia’s human rights history in its distant past. I would particularly like to mention this evening Australia’s recent history of participation in the development and implementation of human rights law, which has been a fairly impressive one.

The Racial Discrimination Act was implemented by the Whitlam Labor government, the Sex Discrimination Act and the Australian Human Rights Commission Act by the Hawke Labor government and, importantly, the Disability Discrimination Act by the Keating Labor government. All of these very important reforms have reflected our longstanding commitment to enshrining international human rights obligations in domestic law. Now, under the Australian Human Rights Framework, those very significant pieces of legislation will be combined and harmonised.

At different times in its history, Australia has had significant influence in international institutions which have considered international obligations, and particularly international human rights obligations. There is no better example of this, to my mind, than the legacy of the great Labor luminary ‘Doc’ Evatt and his role in, amongst a raft of other things, the development of the Universal Declaration of Human Rights.

Despite all of this, we know that the human rights commitments which we have made as a nation by ratifying various very significant human rights instruments can sometimes be regarded as quite remote obligations, sometimes unconnected to the day-to-day lives of ordinary Australians. Although we regularly hear reference to the term ‘human rights’, what this means in practice is perhaps not widely understood in our community. Indeed, at least one member here this evening is convinced that we have a right to freedom of speech. We do not; we have, at best, an implied freedom of political communication. I say again that what human rights means in practice is perhaps not well understood in our community. It is for these reasons that it is especially important that the Human Rights (Parliamentary Scrutiny) Bill 2010 and the Human Rights (Parliamentary Scrutiny) (Consequential Provisions) Bill 2010 are given effect to.

These pieces of legislation will implement key provisions of Australia’s Human Rights Framework, which was released in April this year. The Human Rights Framework is intended to improve understanding of human rights. By improving understanding of human rights, it is hoped that we might be able to expect an increased respect for human rights obligations. The bills before the House will go a considerable way to ensuring due recognition of matters of human rights in the development of other legislation and policy. The bills incorporate key reforms which reflect the recommendations of the National Human Rights Consultation Committee following its rounds of public consultation on methods of promotion and observance of human rights obligations in Australia.

The National Human Rights Consultation Committee remarked in its findings:

Greater consideration of human rights is needed in the development of legislation and policy and in the parliamentary process in general. The primary aim of such consideration is to ensure that human rights concerns are identified early, so that policy and legislation can be developed in ways that do not impinge on human rights or, in circumstances where limitations on rights are necessary, those limitations can be justified to parliament and the community.

Australia must ensure that it takes active steps to ensure that it complies with its obligations under the core international instruments which will be used as the benchmark for human rights analysis under the bills. The rights and obligations in those instruments reflect the concerns of Australia and other countries which have ratified them to ensure that appropriate protection is given to citizens against unwarranted or arbitrary interference in their fundamental rights, irrespective of their gender, colour, disability, age, background or social status.

These bills reflect this government’s determination to properly give effect to the human rights obligations which we as a nation have acceded to. They provide for early consideration of human rights issues in both policy and law-making and reflect this government’s desire to give meaningful, practical and, importantly, whole-of-government effect to our international commitments. Scrutiny of new legislation to ensure consistency with our human rights obligations is a key focus of the bills. Each of these bills provides for measures which are intended to enhance parliamentary scrutiny of new legislation according to those international obligations and to encourage prompt consideration of human rights issues where they arise in the development of policy and legislation. This will be achieved in part through the establishment of the Parliamentary Joint Committee on Human Rights, which will have two key roles: firstly, to consider proposed and existing legislation to ensure that it is compatible with Australia’s human rights obligations and, secondly, to undertake inquiries into specific human rights matters which might be referred to the committee by the Attorney-General and then to report to parliament on those matters in due course. The committee will be the first committee established at a federal level which will be dedicated to scrutinising legislation from the perspective of both our national and international human rights obligations. It marks a significant advancement in the implementation of human rights obligations in a very practical way.

In all aspects of governance at a federal level, human rights will be given due regard. Importantly, the bills will also require that statements of compatibility be prepared for all bills and legislative instruments subject to disallowance. This will have regard to obligations in seven core United Nations human rights instruments which will form the benchmark for assessment of Australia’s human rights obligations. Statements of compatibility are intended to form part of the explanatory memorandum for legislation. It is anticipated that statements of compatibility will provide for analysis of the human rights implications of legislation, but those analyses will be in proportion to the likely impact of proposed legislation on human rights. The statements are intended to be relatively concise. Although statements of compatibility are not intended to be binding upon a court or tribunal, as is the case with other extrinsic materials, it is expected that the statements could be used to aid a court in the interpretation of the provisions of a statute where the meaning of the statute is otherwise ambiguous.

When parliament considers new legislation, statements of compatibility will give parliament guidance as to the relevant human rights considerations raised by the legislation and will assist in the direction of parliamentary debate. In appropriate circumstances, statements of compatibility might justify the restriction or limitation of certain rights where those restrictions or limitations may be in the interests of other individuals or society more generally, as permitted by the international human rights instruments which are used as a benchmark.

By establishing the new Joint Committee on Human Rights and requiring that statements of compatibility be prepared in relation to all new legislation, this government is taking steps to safeguard against the possibility of contravening our human rights obligations by oversight, omission or excess. We are also ensuring better opportunities for dialogue between the proposers of new legislation, other members of parliament, members of the public and affected groups in relation to the likely impact of proposed legislation from a human rights perspective. The measures proposed by the bills provide for greater transparency and improved opportunities for consultation in the legislative process.

In recent weeks we have discussed the circumstances of Afghanistan. We have, as a parliament, had regard to the civil unrest of a range of countries both in our immediate region and around the globe. What assists us in maintaining order and peace and in promoting opportunity in our own society is our recognition of certain minimum rights of each individual. These bills take further practical steps to assist in achieving this, particularly as legislation becomes more complex and expansive. I am very pleased to be able to lend my support to the passage of these bills.

Daryl Melham (Banks, Australian Labor Party) Share this | Link to this | Hansard source

I rise to support the Human Rights (Parliamentary Scrutiny) Bill 2010 and the Human Rights (Parliamentary Scrutiny) (Consequential Provisions) Bill 2010. In his second reading speech, the Attorney-General pointed out that the changes in the framework involved in these bills, which are the legislative elements of Australia’s Human Rights Framework, are aimed at enhancing understanding of and respect for human rights in Australia and ensuring appropriate recognition of human rights issues in legislative and policy development. The minister went on to say that the bills contain two important measures that are designed to improve parliamentary scrutiny of new laws for consistency with Australia’s human rights obligations and to encourage early and ongoing consideration of human rights issues in policy and legislative development.

I think it is worth going to the explanatory memorandum to get in effect the nub of what is in the bills. Part 1 of the Human Rights (Parliamentary Scrutiny) Bill 2010 deals with preliminary matters, including commencement and definitions. The bill will define human rights as the rights and freedoms recognised or declared by the seven core United Nations human rights treaties as they apply to Australia. These treaties include the International Convention on the Elimination of All Forms of Racial Discrimination, which I will come back to; the International Covenant on Civil and Political Rights; the International Covenant on Economic, Social and Cultural Rights; the Convention on the Elimination of All Forms of Discrimination against Women; the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment; the Convention on the Rights of the Child; and the Convention on the Rights of Persons with Disabilities. Part 2 of the bill establishes the Parliamentary Joint Committee on Human Rights and sets out the functions and administrative arrangements for the committee, and part 3 of the bill introduces a requirement for statements of compatibility to be prepared for all bills and legislative instruments subject to disallowance.

I think this is a very important bill, for a number of reasons. I have been in this place for just over 20 years, so I have seen legislation by a former Labor government and I have seen legislation by the former conservative government. This government, both in the last parliament and now, has not had a lot of time to do a lot of legislation because we are still at our infancy as a government. What annoyed me most in previous years was how on very important issues where this nation had signed up to the International Convention on the Elimination of All Forms of Racial Discrimination I found myself over a 20-year period seeking to defend the Racial Discrimination Act from being overridden or suspended in relation mainly to Indigenous issues because governments saw it as a way of undermining court decisions that had been made in favour of Indigenous people, and particularly in relation to native title. I can remember the former Keating government initially proceeding down a path because it was then advised that it was necessary to suspend the Racial Discrimination Act to guarantee certainty post the Mabo decision. Fortunately the Keating government did not go down that road; it complied with the Racial Discrimination Act and the convention and its legislation was enacted in conformity with the Racial Discrimination Act.

The Howard government, however, post the Wik decision engaged in a deception of the electorate. In its response to the Wik decision we had bucketfuls of extinguishment, as the then Deputy Prime Minister, Tim Fischer, described it; we had schedules that had predicated or in effect decided that any of those titles that were on the schedules would be deemed to extinguish native title. Throughout the whole period there were Senate hearings. I can remember, being on the then Joint Standing Committee on Native Title, a number of lawyers gave evidence to a roundtable hearing in relation to the constitutionality of the proposed revisions, but throughout the whole of that period the Howard government hid behind the facade that it was not overriding the Racial Discrimination Act and it hid behind the facade as to the impact of what would happen with the overriding of the Racial Discrimination Act.

The Human Rights (Parliamentary Scrutiny) Bill 2010 would have inserted into that process a procedure that would have had the parliament, parliamentarians and professionals involved, who could have looked at the interaction of that legislation, its detrimental provisions and its lack of conformity with the racial discrimination convention and honestly reported to the parliament at the time. It would not have stopped the parliament from overriding it because the parliament has the constitutional power to act in a discriminatory way. Without the parliamentary committee it was left to Indigenous people to appeal to the United Nations. Indeed, it was the human rights subcommittee of the United Nations that belled the cat in relation to the discriminatory provisions of the Howard legislation and its impact on native title.

If we sign up to conventions like the ones that I have read out, it is my firm view that as a parliament we should abide by the spirit of those conventions. We should not be enacting laws that are discriminatory, particularly towards Indigenous people in this country. But, if a future parliament wants to do that, then a parliamentary committee with specialist expertise should expose what the government of the day is doing.

It is well known that I was one person within my own party who was not happy with the intervention in the Northern Territory because of what happened in relation to the Racial Discrimination Act. I did not raise my concerns in a public way. I argued those concerns within the party room. It is something that, at the time, I was not proud of. Let us be very clear: the unfortunate point was that, irrespective of whether the Labor Party had adopted my position or not, the then government had a majority on both houses of parliament.

What was said at the time was, however, a lot more honest than what had been said during the Wik debate because, I think, there was an acknowledgement that there was a winding back of the Racial Discrimination Act for particular purposes. It does not make it any better, but at least it was a more honest approach by the then government that they were doing this because they felt it was necessary. I have the view that you can protect and save children and you do not have to do it in a discriminatory manner.

The problem has been in the past that, without something like parliamentary scrutiny or a specialist parliamentary committee, governments of all persuasions have taken the easy route. That is why I believe this legislation is very important legislation because it draws a line in the sand. It basically says that we have the objectives, that we are going to have a situation where we outline the treaties we are involved in and, as it says in the explanatory memorandum:

… the Bill introduces a requirement for statements of compatibility to be prepared for all bills and legislative instruments subject to disallowance.

What I want to see, if this bill passes both houses, is that we have honest statements in relation to compatibility, not weasel words and not statements that necessarily squib the issue. In relation to all pieces of legislation we have an honest assessment before the parliament as to what it actually means in an international sense.

This country’s history deserves something like that because our Constitution still has very discriminatory sections in it. Whilst it has not been decided by the High Court, it is pretty obvious the direction it is going. As a result of the 1967 referendum, despite the 90 per cent support for passage of the amendment to the Constitution, overwhelmingly, the public thought that they were acting in a way which meant the government could only act in a beneficial way to Aboriginal people as a result of the passage of that referendum. As a result of the Hindmarsh Island bridge case, we know that there are some judgments which point to the fact that any future interpretation by a High Court of the race power takes it back to the meaning of the race power at the time the Constitution was enacted, which means that it is open for a Commonwealth parliament to discriminate in a very negative way towards Indigenous people and to do so within the constitutional framework. That is why this legislation is important as a safeguard mechanism so that legislators are able to have independent professional advice before them as to the consequences of particular legislation being considered before the parliament.

The truth is—and I do not say this as a criticism of advisers or the public service—that executives in the past have squibbed in relation to the consequences of legislation and its impact. There is weasel room in a number of instances. I am quite happy to support this legislation. I commend the Attorney and the department for framing this legislation and for bringing it before the parliament because I think it is important.

My experience over 20 years has been, frankly, that we could have done with this for the last 20 years. We could have done with this legislation at the time of Mabo, we could have done with this legislation at the time of Wik and we could have done with this legislation at the time of intervention in the Northern Territory, just to name three instances, because the parliament would have had in front of it, hopefully, more independent advice as to the consequences for Indigenous people of the legislation it was then considering.

I do not say this necessarily in criticism of everyone on both sides of politics. Most people are not lawyers. They take advice. They believe what prime ministers tell them and what ministers tell them, and it is not necessarily always the case that they tell the truth.

Sharon Grierson (Newcastle, Australian Labor Party) Share this | Link to this | Hansard source

I rise today to speak in support of these historic bills. The Human Rights (Parliamentary Scrutiny) Bill 2010 and the Human Rights (Parliamentary Scrutiny) (Consequential Provisions) Bill 2010 respond to recommendations of the 2009 Brennan review to establish a parliamentary joint committee on human rights, a recommendation which was also made by the Human Rights Subcommittee of the Joint Standing Committee on Foreign Affairs, Defence and Trade in the last parliament.

The committee will examine and report to the parliament on our human rights compliance by issuing statements on compatibility for all bills and legislative instruments introduced to the parliament in reference to the International Convention on the Elimination of All Forms of Racial Discrimination; the International Covenant on Civil and Political Rights; the Convention on the Elimination of All Forms of Discrimination against Women; the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment; the Convention on the Rights of the Child; and the Convention on the Rights of Persons with Disabilities. The committee will also have broad powers to conduct inquiries into matters of human rights referred to it by the Attorney-General and, like all committees, it will have the power to seek submissions, hold public hearings and examine witnesses.

As a government we are concerned about human rights abuses both in Australia and internationally. As Australians we become concerned when human rights are abused. For example, in my electorate of Newcastle many people are particularly concerned about a young man, Jock Palfreeman, who has been convicted of murder in Bulgaria after trying to protect two youths from an attack by a group of 15 men. I do not comment on the laws of Bulgaria or the legal case, but I can understand how a young man in Newcastle would always try to protect the underdog. Jock’s appeal commenced on 21 October 2010, and I hope that he will receive the sort of procedural fairness that we value here in Australia.

I would also like to reiterate the sentiments of our Prime Minister and welcome the release of Aung San Suu Kyi from house arrest. Aung San Suu Kyi has paid a heavy price for her advocacy of democracy and freedom, and I encourage all Australians to remember and value the freedoms that we experience here in this nation. Many political prisoners continue to be detained in Burma, and I hope that the Burmese authorities will move to release them in the near future, as Aung San Suu Kyi has requested. I also hope she will have opportunity one day to lead the people of Burma.

This Labor government has a proven track record of strengthening our compliance with our international human rights obligations, and we are doing it in a way that unites, rather than divides, our community. Last year I welcomed the entry into force in Australia of the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women. As part of a government led by Australia’s first female Prime Minister, I know that we are leading the charge for greater gender equality and recognition of human rights in the Australian community. But we always need to do more. On the recommendation of the National Human Rights Consultation committee, the now Prime Minister, Julia Gillard, outlined a package of education initiatives earlier this year to foster community awareness of human rights. Included in that package is $6.6 million to expand the community education role of the Australian Human Rights Commission and $2 million over four years for the development and delivery of community education and engagement programs by non-government organisations. A $3.8 million investment in the Commonwealth public sector to improve human rights awareness will further build a culture of respect for human rights. It will allow for the development of a human rights tool kit that will set a benchmark for future policy development and implementation.

But the crux of this legislation, and the linchpin of our efforts to enhance the community’s understanding of and respect for human rights, is the statement of compatibility mechanism, which mirrors section 19 of the British Human Rights Act 1998. What strikes me about this bill is the important role that statements of compatibility could have played throughout Australian history. I take note of the member for Banks’s comments in that regard.

GetUp!’s High Court challenge to the Howard government’s 2006 amendments to the Electoral Act in Rowe v Electoral Commissioner is a recent example. The Sydney Morning Herald described the amendments as ‘Orwellian’ because they led to the disenfranchisement of hundreds of thousands of mainly young voters. Although the court is yet to hand down the reasons for its decision in Rowe, the parliament and the Australian people would have benefited from a statement of compatibility of the Howard government’s amendments with article 25 of the International Covenant on Civil and Political Rights when the bill was first introduced in 2005. The unanimous ruling of the High Court late last week in Plaintiff M61 and Plaintiff M69 that two Sri Lankan asylum seekers were denied procedural fairness further highlights the need for this bill.

The Northern Territory intervention legislative package introduced by the Howard government in 2007, likewise, would have benefited from a statement of compatibility with the International Convention on the Elimination of All Forms of Racial Discrimination or the prohibition against discrimination contained in article 26 of the ICCPR. Article 26 provides:

All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

Given that the Howard government saw fit to suspend the application of the Racial Discrimination Act 1975 in the Northern Territory, it is not unlikely that the bill would have been found to be in contravention of our international human rights obligations. This is the legislation that the Law Council of Australia condemned as ‘utterly unacceptable’ and about which the Northern Territory’s Anti-Discrimination Commissioner, Tony Fitzgerald, was quoted as saying, ‘The suspension of the Northern Territory and the federal race discrimination legislation can never be justified.’ We reinstated the relevant provisions of the Racial Discrimination Act as they applied to the intervention last year. Many would have said ‘thank goodness’.

Although the Howard government may have proceeded with the legislation in each of these circumstances, despite the likelihood that they were incompatible with our human rights obligations, the Human Rights (Parliamentary Scrutiny) Bill would have fostered and will foster a human rights dialogue as an integral step in the legislative process. But in the United Kingdom, as in the Australian Capital Territory and Victoria, statements of compatibility on their own have been deemed to be an insufficient mechanism through which to protect human rights. The United Kingdom has a parliamentary mechanism as well as a judicial mechanism through which declarations of inconsistency are issued, yet the 2009-10 report of the Parliament of the United Kingdom’s Joint Committee on Human Rights reveals that the parliament remains unresponsive in respect of a number of declarations of incompatibility. As the Brennan review recommended, we need a human rights act with a strong presumption in favour of judicial interpretations of legislation that foster rights compatibility.

Long has the Australian Labor Party sought to legislate to transform our international human rights obligations into domestic law. In 1973, and again in 1985, the then Attorney-General, Lionel Bowen, introduced bills into the Commonwealth parliament to enact a statutory bill of human rights. Both times, however, the legislation was defeated. Since then, we have seen the Human Rights Act 2004 in the ACT, implemented by the Stanhope Labor government, and the Victorian Charter of Human Rights and Responsibilities 2006, legislated by the Bracks Labor government. Australian and state Labor governments are clearly committed to protecting and promoting human rights in accordance with our international human rights obligations.

Fundamental to any attempt to protect and foster human rights is a provision, such as section 3 of the British Human Rights Act 1998 and section 32 of the Victorian Charter of Human Rights and Responsibilities Act 2006, that requires the judiciary to interpret legislation so far as possible in accordance with our human rights obligations. The importance of such provisions is highlighted in cases such as Ghaidan v Godin-Mendoza in the United Kingdom. In Ghaidan, the House of Lords read the clause ‘surviving spouse’ contained in paragraph 2(2) of schedule 1 to the Rent Act 1977 so as to extend to include same-sex couples. In doing so, they brought the provision into accordance with articles 14 and 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. I truly hope that, in the not-too-distant future, we will see a national human rights act with a strong judicial mechanism through which to ensure rights compatibility. Only then will we catch up with the rest of the world and enhance the understanding of, and respect for, human rights throughout the Australian community. Like the British parliament, we must bring rights home!

But Senator Brandis has decried the Brennan review as ‘a case study in policy incompetence’. According to Senator Brandis:

… in a nation such as Australia, the very strength of our liberal democratic culture is the strongest reason why such an instrument—

as a bill of rights—

is redundant.

That is not the view of former High Court Chief Justice Sir Anthony Mason and former High Court Justice Michael McHugh, and it is not my view. Nor is it the view of the United Kingdom, the United States of America, Canada or New Zealand, who all recognise the need to temper the will of the majority with the adjudicative power of the judiciary in order to provide additional protection for human rights. With all due respect to Senator Brandis, I think that the strength of our liberal democratic culture is measured by our protection of human rights—particularly those of the disadvantaged. As in other Western nations, it is my view that a bill of rights would strengthen rather than diminish our liberal democratic culture.

Those rights-sceptics opposite then argued that a statutory bill of rights would undermine parliamentary sovereignty. Legal scholar Tom Campbell even suggested that it may give rise to ‘juristocratic power’. But Jeffrey Goldsworthy has rightly pointed out that democracy is ‘based on a right to participate indirectly, rather than a duty to participate directly, in public decision-making’. Contrary to the view of Senator Brandis and many rights-sceptics, I believe that a statutory bill of rights would not diminish nor undermine democracy or representative government. Under a statutory bill of rights, the Australian parliament would retain the ultimate legislative power to overrule the decisions of the judiciary where it disagrees with a rights-compatible interpretation.

The primary importance of a statutory bill of rights, however, is not in the courtroom. The Director of the Human Rights Law Resource Centre, in an article published in the Age, has pointed out that outside the courtroom human rights law is:

… used to address disadvantage and promote dignity; a fact conveniently ignored by national charter of rights critics.

He goes on to say:

You won’t have read, for example, that the Victorian charter prevented the eviction of a single mother and her kids from public housing into homelessness, or that it assisted an elderly woman with brain injury to get access to critical medical assistance. Or that it helped a woman with cerebral palsy and children with autism to obtain support services. These are common-sense decisions in real-life cases, which show how charters of rights can and do improve lives and promote values such as freedom, respect, dignity and a fair go.

I have to say that I am a strong advocate for a national bill of rights. We stand alone in the Western world as the only jurisdiction without a bill of rights, whether constitutionally entrenched or statute based. I hope that each of us in this parliament will consider that. So often those opposite cite the need to not introduce a carbon pollution reduction system or a carbon tax ahead of the rest of the world. But on human rights, we are well behind.

Professor of Constitutional Law, George Williams, has said, ‘Australians want more reform than this.’ While he is right, the Australian people do want more than simply a parliamentary committee—something I praise and something I welcome—and the human rights dialogue that will be fostered by this bill will be hopefully a significant step along the path to a just and truly equal Australia and to a national bill of rights.

The President of the Australian Human Rights Commission, Catherine Branson QC, has said that these measures have ‘the potential to open up a broader dialogue on human rights at the heart of our democracy’. This is a dialogue that our government supports wholeheartedly. I commend the bills to the House, and I lend my praise to the Attorney-General for at least coming this far in introducing a human rights compliance aspect into everything we do in this parliament. It is a step that is well received and a step that is long overdue, but I hope it is a step along a journey to a full bill of rights for Australia.

Tony Zappia (Makin, Australian Labor Party) Share this | Link to this | Hansard source

I welcome the opportunity to speak on the Human Rights (Parliamentary Scrutiny) Bill 2010 and the Human Rights (Parliamentary Scrutiny) (Consequential Provisions) Bill 2010. The two key provisions of them are on, firstly, the establishment of a parliamentary joint committee on human rights and, secondly, the preparation of a statement of compatibility to accompany all bills and legislative instruments subject to disallowance. The question of a bill of rights is something that I have taken an interest in for many years. These bills go a significant way toward ensuring that we do have more rights entrenched in our legislation than in the past. Whilst the rights may not be legally entrenched, it will certainly be the case that as a result of these bills there will be more scrutiny of our legislation to ensure that in fact human rights do get the support of the parliament when bills are debated and legislated. The very fact that we are debating this bill, and that Australia went through a lengthy public discussion about human rights and how we can best ensure them, reflects the strength of the Australian democracy. It is also a measure of our common decency because human rights are fundamentally about constructing a society in which people are all treated equally and, just as importantly, a society in which we treat all others in the same way that we would like society to treat us.

What has clearly emerged from the public consultation is that the question of a bill of rights—or a charter of rights as it has often been referred to—is argued as passionately by those in favour of such a bill or charter as it is by those who oppose it. Given the legal implications associated with the public consultation, I note that some of the nation’s most eminent jurists have contributed to this debate and put forward opposing views. Interestingly, whilst the views are opposing, both sides of this debate are united in the belief that there is a strong case for the support of human rights in this country. The difference, however, is on how those rights are best protected.

Our laws are essentially premised on a belief in human rights. The question, however, is whether they adequately protect basic human rights or not. That is the question that led to the call for a bill of rights and the public consultation on this matter. My view is that the answer lies not in whether Australia adopts a bill of rights but rather, if it does, what is spelt out in such a bill. That is the key question, yet disappointingly that was not the question addressed by many of those who made submissions and certainly not by those who ran campaigns against such a bill or a charter of rights. In fairness to those people who had concerns about such a bill or a charter, there was not a bill before them on which they could comment.

My concern is that you cannot oppose a proposal without first seeing the contents of it. How can you argue that a proposal will weaken human rights, as some did, when you do not know what the proposal is? Both sides of this debate quite properly pointed to real examples to support the case for and against the proposal for a bill or a charter of rights. That is why I believe that the process leading to this bill serves a very useful purpose. One only has to ask a person who has been the victim of unfair or unjust treatment or personally deprived of basic rights to understand just how unjust and soul destroying it can be to have basic rights denied, yet it sometimes happens in spite of all the laws and judicial processes we have in place in Australia. Where the problem arises because the laws are deficient, the problem is easily rectified by amending the laws. However, that is not always the case.

I want to raise three matters which highlight that Australia’s current laws are still inadequate in protecting what we all accept as basic rights. Firstly, in recent decades we have seen the introduction of a number of anti-discrimination laws. These laws were intended to protect rights and ensure all people are treated fairly. Whether those laws resolve the problem may be debatable, but what those laws certainly did do is acknowledge that there was a problem. We have also appointed human rights and equal opportunity commissioners tasked with the responsibility of overseeing compliance with those laws.

Secondly, in recent years we have seen the appointment of numerous ombudsmen, primarily to intervene where it appeared that natural justice had been denied to people. The number of ombudsmen or commissioners appointed continues to grow, further highlighting that existing laws still fail some people. Thirdly, and perhaps most importantly, since adopting the United Nations Human Rights Charter, Australia has over the years adopted several other specific charters on rights or has been a party to international treaties—for example, the Convention on the Rights of the Child, the Convention on the Rights of Persons with Disabilities, the Convention against Torture and Other Cruel Inhuman or Degrading Treatment or Punishment and other conventions and treaties that I could refer to.

I make two points about all these charters and treaties. The first is that such charters, which are intended to protect human rights, would not be necessary if the rights expressed in those charters were already enshrined in Australian law by way of a bill of rights, a charter of rights or in the legislation itself. Secondly, adopting such charters or conventions or treaties does not make them binding on Australia unless they are, in fact, written into our laws. The critical point about international conventions and charters adopted by Australia is that they expose the shortfalls in our own Australian laws.

I want to raise a couple of other matters in respect to submissions made in the national human rights consultation. I note that there was considerable opposition to a bill of rights raised by the religious sector. Whilst I understand their concerns—and I believe that their concerns in many respects are justified when assessed against existing bills of rights that are in place in other jurisdictions—I am not convinced that their concerns could not have been resolved by a careful crafting of a bill of rights or a charter of rights for Australia.

Kirsten Livermore (Capricornia, Australian Labor Party) Share this | Link to this | Hansard source

Order! It being 8 pm, the debate is interrupted in accordance with standing order 34. The debate is adjourned and the resumption of the debate will be made an order of the day for the next sitting. The member will have leave to continue speaking when the debate is resumed.