Josh Burns (Macnamara, Australian Labor Party) Share this | Link to this | Hansard source

On behalf of the Parliamentary Joint Committee on Human Rights, I present the committee's report incorporating dissenting reports, entitled Inquiry into Australia's human rights framework.

Report made a parliamentary paper in accordance with standing order 39(e).

by leave—I'm pleased to table the Parliamentary Joint Committee on Human Rights's inquiry report into Australia's human rights framework. In March last year, the Attorney-General tasked our committee with reviewing the scope and effectiveness of Australia's 2010 human rights framework. This framework aimed to improve and promote human rights in Australia, but it was largely abandoned following the change of government.

Much of the focus of our inquiry has been on whether, as part of revitalising Australia's women rights framework, Australia should enact a federal human rights act. The committee received 335 submissions and over 4,000 form and campaign letters. We held six public hearings, during which we heard evidence from a range of community groups, religious organisations, government bodies and experts. Submissions were overwhelmingly in favour of the introduction of a human rights act, with only four per cent opposed.

The committee considers our current piecemeal approach is inadequate to properly protect and promote rights in Australia. We need human rights to be made real in everyday decision-making. Numerous royal commissions have shown us what happens when officials, both elected and unelected, fail to properly consider the effect of government actions on the rights of vulnerable people. That is why the committee has recommended the establishment of a statutory federal human rights act as part of a revitalised human rights framework.

Australia is the only liberal democracy without a bill or charter—the only one. Victoria, Queensland and the ACT all have current existing human rights acts or charters.

The committee does not agree that rights protection should sit within the Constitution, as is the case with a bill of rights. The committee's proposed statutory model respects parliamentary sovereignty and ensures our elected representatives can continue to make the laws that parliament deems necessary. But with a human rights act in place, the federal parliament would need to expressly consider rights when making laws. And the Commonwealth public authorities, including government departments, would need to consider rights when making decisions and act compatibly with those rights unless parliament specifically directs them otherwise.

I reject the notion that a human rights act risks politicising the judiciary and opening the floodgates to litigation. Evidence from other jurisdictions with human rights acts, both within Australia and internationally, is that the floodgates have not opened. Under this proposed model, most complaints would be settled through conciliation. In the small number of cases that get to the courts, judges would need to consider the application of the law. This is something that our courts do every single day. Judges would not be able to strike down any laws on our books. The committee has attached to our report a draft human rights bill. This is not intended to dictate what a human rights act should look like if adopted, but it is intended to help promote understanding of the proposed model.

In our extensive report, the committee has made 17 detailed recommendations to better protect human rights. Simply having a human rights act will not be enough to achieve human rights protection; we also need a greater understanding of human rights right across the community and, importantly, across the Public Service. I believe that one of the main benefits of a human rights act will be to drive a human rights culture within the Public Service so that those who serve us have a clear framework to consider and balance the rights and freedoms of everyday people when making decisions and developing laws and policies that affect us all. It is also important to note that a federal human rights act could have no direct impact on matters governed by the states or territories, such as policing, prisons, housing or child welfare. The hope is that, over time, progress would be made towards all states and territories joining Victoria, Queensland and the ACT in having their own human rights acts to ensure that all Australians receive the same human rights protections.

I thank the Attorney-General for referring this important inquiry to us, and urge the government to give serious consideration to the evidence received by the committee and our detailed recommendations. I also want to acknowledge the substantial work of the Australian Human Rights Commission. The commission's proposal for a statutory human rights act has been the foundation on which this committee's recommendation on this point has been built. They have provided momentum and effort, and guidance and expertise, and I thank all of the members of the commission for their work.

I would also like to thank the hundreds of individuals, organisations and experts who generously gave of their time to contribute to this inquiry; it was the very best of Australian civil society. Australia is well served by our vibrant and tireless civil society activists, who give thought and dedication to the future of our democracy and our country. I would like to thank both deputy chairs who participated in this inquiry—firstly, the member for Bowman, who sits in this chamber, for the fantastic way in which he collaborated and worked with the committee and myself. I really do appreciate it. Obviously, we had some policy differences but, on the whole, it was an extremely consultative and collaborative process, and I thank him for his efforts. And I also acknowledge the member for Monash, who began this inquiry as the deputy chair as well. I want acknowledge my fellow committee members who were participants in this important inquiry, who gave effort, expertise and engagement in a way that was the very best of our parliamentary committee processes. I thank them all for their engagement on this.

I would like to thank the committee secretariat. The Human Rights Committee is made up of some of the finest public servants in this building; they are all experts on human rights law, and they even make us look half competent! They have put an enormous amount of work into this inquiry. They have brought their years of expertise in this place, and I believe some of them may even be in the chamber right now. They are outstanding civil servants and they should be proud of this report as well.

I also wish to acknowledge the dedication and commitment of our former committee colleague, the late Peta Murphy MP. Peta was a passionate advocate of the need for an Australian human rights act. She mentioned it in her first speech. Peta became a member of the committee to participate in this very inquiry, and her insightful and incisive questions during the public hearings helped shape the evidence that the committee received and helped shape a number of the committee's important recommendations. I'm saddened that she's not here today. I think she would have been proud of this report.

I encourage the government and all members to consider the committee's report closely. It is time that Australia updated its human rights framework. We have a strong record of human rights protections, but there are gaps. There are improvements that need to be made. Australia, as a liberal democracy, is the only country that doesn't have a human rights act, and I think that should change. I commend the committee's inquiry into Australia's human rights framework and its report to this House.

Henry Pike (Bowman, Liberal National Party) Share this | Link to this | Hansard source

I seek leave to make a short statement in connection with the report.

Leave granted.

I rise to speak on the report of the Parliamentary Joint Committee on Human Rights inquiry into Australia's human rights framework and, specifically, on the dissenting report presented by the coalition members of the committee. At the heart of the majority report is the recommendation that the government pursue a human rights act based on the model put forward by the Australian Human Rights Commission. Coalition members reject this flawed proposal. We consider it both unnecessary and dangerous.

As our former chief justice, Harry Gibbs, once noted: 'If society is tolerant and rational, it does not need a bill of rights. If it is not, no bill of rights will preserve it.' A human rights act or a bill of rights has been seriously proposed at least 10 times before in Australia's history. It was deliberately rejected by the framers of our Constitution and has been rejected by every government since 1901. Once again, the proponents of a human rights act, through their submissions to this inquiry, have failed to demonstrate that our current systems are not providing adequate protections for human rights or that their reform model would achieve preferable outcomes.

Australia has an enviable human rights record and historically played a pivotal role in the development of the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights. The AHRC's proposed act and the example bill presented in this report are a dangerous departure from those human rights agreements that Australia is treaty-bound to adhere to. It selectively and deliberately devalues internationally recognised protections for the freedoms of thought, conscience, religion and belief.

The AHRC proposed that the right to not be subjected to torture be reinterpreted in a new right to not be treated in a degrading way, as a tricky way of giving preference to non-discrimination protections over individual freedoms. It also invents a new, open-ended, single-limitation clause on all rights, rather than adopting the finely calibrated approach in the international covenant, which outlines the circumstances in which some rights may be limited and what rights can never be restricted. Coalition members fear that this departure from international jurisprudence would result in excessive restrictions being placed on the freedoms of religion and expression in Australia.

A human rights act as proposed would weaken our parliamentary democracy and politicise our judiciary. Australia's democracy is robust, open and vigorous. This parliament is the best institution to defend human rights and to debate and determine the balance of competing rights through legislation. An act along the lines proposed by the Labor and Independent majority on the committee would insert abstract and vague concepts into our law that would require judicial interpretation. It would represent a surrender of this parliament's responsibility to defend human rights to an unelected and unaccountable judiciary. Coalition members consider the proposed act as a convenient way for parliamentarians to avoid making difficult decisions. It would entangle judges in controversies about contentious moral and political causes, and it would create American-style conflicts between the judiciary and the executive.

An act of this nature would also make it harder for Australian governments to keep our citizens safe and our borders secure. We have seen this in the United Kingdom. The United Kingdom government's attempts to deport foreign criminals have been thwarted by their human rights act. Camilo Soria unlawfully remained in the UK after the expiration of a student visa. UK courts determined that Soria had a pet cat and that therefore the deportation order breached his rights to a private and family life under their Human Rights Act. A similar judgement relied on a failed asylum seeker's local gym membership and participation in a five-a-side football team to determine that he had established a private life in the United Kingdom. We fear what a similar act would mean for the interpretation and implementation of the laws that we make in this place.

One only has to look at the human rights acts enacted in Victoria, Queensland and here in the ACT to see how this is not a silver bullet. These acts have made little difference to human rights in these parts of Australia. These jurisdictions were amongst the worst offenders against human rights during the pandemic. A human rights act is clearly not a guarantee of achieving protection of human rights. The United States Bill of Rights did not prevent the practice of slavery. The French declaration of the rights of man did not prevent the bloodshed and summary justice of the Reign of Terror. The impressive rights espoused in the Constitution of the Soviet Union did not prevent the Great Purge or the gulags. Individual freedoms are protected extensively within the constitution of North Korea, yet the nation has no contemporary parallel with respect to the extent of its human rights abuses.

Those proposing and supporting the adoption of a human rights act in Australia have the burden of proving both that our current systems are not providing adequate protection of human rights and that their reform model would achieve preferable outcomes. Contrary to the views of the government members of the committee, coalition members maintain that neither of these aspects have been demonstrated by any of the submissions made during the inquiry. In fact, there is sufficient evidence to suggest that an act could have a negative impact on human rights. Coalition members share the concern of many submitters that the proposed act is unnecessary, dangerous and will erode the rights of Australians.

The list of rights selected within the bill proposal presents an inconsistency with those protected under article 18 and article 7 of the ICCPR. It devalues internationally recognised protections for the freedoms of thought, conscience, religion and belief. Article 18 of the ICCPR mandates freedom of religion or belief. These rights are non-derogable—that is, they cannot be suspended even in a state of emergency. Article 18 does not appear in the AHRC's proposed human rights act. Instead, it is replaced by a new, redefined approach. Coalition members consider that this would represent a significant departure from the robust religious freedom protections outlined in article 18, particularly in relation to sections 3 and 4. Preference has clearly been given to non-discrimination protections over individual freedoms, despite these freedoms being regarded by the ICCPR as absolute.

Many stakeholders submitted to the inquiry their concerns that this model does not have sufficient evidence on the ICCPR when it came to religious freedom. Given that Australia's protections for the freedom of thought, conscience and religion are already well regarded as insufficient, this proposed approach would be a significant backward step in protecting human rights within Australia. Coalition members are concerned that an act of this nature could be utilised as a trojan horse for social agendas that cannot be progressed successfully through the political process.

Former Labor Attorney-General Robert McClelland noted in the 2010 Human Rights Framework:

… human rights in Australia would not be served by an approach that is divisive or creates an atmosphere of uncertainty or suspicion in the community.

I fear that the recommendations of the committee will result in this sort of divisive approach being pursued by the government. I encourage the Attorney-General to consider what next steps are truly in the national interests. Does the government wish to make meaningful, incremental and bipartisan improvements to Australia's Human Rights Framework or does the government wish to embrace the AHRC's bizarre reimagining of human rights, with key rights deleted and absolute rights not recognised as such?

On behalf of the coalition members of the committee, I want to thank everyone who engaged with the committee's inquiry process, the committee secretariat for their tireless efforts in supporting our work, and the committee members, who sat through those hearings and debated the outcomes of this report. The coalition members' rejection of the human rights act proposal reflects a commitment to uphold Australia's proud tradition of human rights while safeguarding the primacy of this parliament and protecting the rights of all Australians.

Kylea Tink (North Sydney, Independent) Share this | Link to this | Hansard source

by leave—As a member of the Parliamentary Joint Committee on Human Rights and a proud proponent of human rights, I welcome the release of the committee's report recommending that Australia establish a national human rights act. Let's be clear. The evidence showed us that, by establishing a human rights act, we can re-lay the foundations for a fairer, more sustainable and more inclusive society and ensure all the rights of Australians are adequately protected.

Despite Australia being party to seven core international human rights treaties, there is no way to challenge human rights violations under our current national law. To help people fight for the right to a healthy environment, their reproductive rights, education, adequate housing, Indigenous self-determination and many other rights, we need a national human rights act.

The proof of the pudding is in the eating. State based human rights laws have been used to successfully protect a range of rights and have resulted in more accessibility to public transport, the extension of superannuation benefits to same-sex couples and public education for children seeking asylum. To be clear, none of those rights would have been granted if those state human rights acts were not in place.

Many of the abuses and injustices of the past might have been avoided if our federal government had been forced to consider human rights before rolling out schemes like robodebt or in regulating industries like the aged-care sector. Numerous royal commissions have shown us what happens when we fail to properly consider the impact of government action on the rights of vulnerable people and allow human rights to become a political football rather than a fundamental truth.

For too long, we have been layering bad law over the top of bad law rather than fixing our foundations with a fundamental human rights act. The result is an unnecessarily complex and piecemeal approach to protecting basic rights that sees this parliament deteriorate into a political debate every time we come up against a question of what is fair and equal treatment for all.

The committee received overwhelming support for a human rights act, with the vast majority of submissions—in fact, 96 per cent—in favour. Let's be really clear. Despite what we just heard from the opposition, 96 per cent of the submissions to this committee were in favour of the establishment of a human rights act. We also know, thanks to the work of Amnesty International, that 75 per cent of Australians support the establishment of a human rights act.

I also want to frame this up by saying that, in relation to the four per cent who expressed concern, the committee took on board all the evidence that was presented to us, including from religious organisations and organisations that fear the impact on their individual civil liberties, and we responded to those calls to amend what was the original draft of the human rights act to ensure we referenced all protections of all existing international treaties. Given this, I'm actually extremely disappointed this is not unanimous report, as I don't believe the evidence received by the committee, nor the actions and decisions of our committee, support that dissenting report.

In contrast to the dissenting report's claims that the adoption of an overarching human rights act would fundamentally remove our right to be seen individually, the dissenting report leaves human rights in a position where they will continue to be a political football, remaining dependent on which party is in control of the government at any point in time. Australians have a right to be able to expect to move beyond this politicisation of human rights, and I believe that's what this committee saw as a way forward for our nation.

We cannot let dissent distract us from doing what we know must be done to finally bring Australia in line with all other liberal democracies. We now need our government to step up and deliver the human rights protections everyone deserves. This is an exciting opportunity for Australia and one that we should grasp with gusto. The division is not amongst our community; it is between our political parties. I ask all in this House to set that political division down and focus on Australian citizenry.

In closing, I want to thank the chair of the committee, the member for Macnamara, for his leadership of this committee. He has been there from the very beginning, advocating that we be given the opportunity to do this work. He has attended every hearing and listened deeply to every piece of testimony. He's navigated the contention at the committee level fairly and equitably, so I thank him. I also want to thank the deputy chairs, the member for Bowman and the member for Monash. I know you brought with you your passions and I believe that added to the debate we had at the committee level. I also particularly want to thank Senator Lidia Thorpe, who constantly challenged our committee to listen deeply and explore opportunities to go as far as we possibly could. I have to say I also greatly appreciated the input and the collegiality of the rest of the committee membership. I want to assure Australians that there was extraordinary experience on this committee. For me, as somebody who is new to this parliament, it was a privilege to be part of the conversation and the debate. We need to thank the committee secretariat, led by Anita Coles, who has been simply extraordinary.

Finally, to the many individuals and organisations who provided submissions and testified in front of the committee, many of you have seen the potential for our nation to be better tomorrow than it is today through the introduction of a human rights act. Thank you. Thank you for that advocacy and for being the voice that calls us to be all we can be. This is but a small first step, but I believe it's a step forward and it has been made possible because of your commitment to shaping our democracy in a way that ensures all Australians truly are free and equal. I sincerely hope this 47th parliament lives up to the faith you have placed in us to take this forward.

Josh Burns (Macnamara, Australian Labor Party) Share this | Link to this | Hansard source

I move:

That the House take note of the report.

Scott Buchholz (Wright, Liberal Party) Share this | Link to this | Hansard source

The debate is adjourned, and the resumption of the debate will be made an order of the day for the next sitting.