Hollie Hughes (NSW, Liberal Party) Share this | Hansard source

The government supports the desire to better protect the rights and freedoms enjoyed by all Australians and understands that we need to remain vigilant in ensuring that it remains relevant this way. We recognise Senator Bernardi's longstanding credentials in this area, and in particular acknowledge his commitment to improving the protection of the freedoms that all Australians should enjoy as a matter of course. We understand the factors which drive Senator Bernardi's reform in this space.

As my colleague Senator Paterson said, there are some aspects of the human rights industry in Australia which push a perverse and out-of-touch agenda that is at odds with the expectations of ordinary Australians. However, the government does not consider the Human Rights (Parliamentary Scrutiny) Amendment (Australian Freedoms) Bill 2019 to be an appropriate legislative reform mechanism. The bill introduces a new concept in Australian law, the concept of Australian freedoms. This appears to be a mix of some human rights, which it says exist under the International Covenant on Civil and Political Rights, together with what are called constitutional and common law protection of property rights. It's not clear what the constitutional and common law protection of property rights include. Further, there's no clear explanation as to why some rights in the ICCPR have been selected to be Australian freedoms and others have been left out. For example, the bill says that the prohibition against torture is an Australian freedom but not the prohibition against slavery. The bill says that the prohibition against retrospective criminal laws is an Australian freedom but that the rights of liberty, equality before the law and the right to be held innocent until proven guilty are not. The bill includes the right to protection of the family as an Australian freedom, but leaves out the idea that men and women should have equal rights.

The government is not aware of any public consultation on this issue and, in the absence of that widespread debate, cannot accept that this list of Australian freedoms adequately represents or reflects the desires and interests of the Australian people. The government believes that the existing mechanisms for the parliamentary scrutiny of human rights are adequate. Under the existing law this scrutiny is done through the preparation of a statement of compatibility that considers whether any bill or legislative instrument that comes before parliament is compatible with human rights. What this bill would require is, in effect, for that scrutiny to occur twice. For any legislation put before the parliament, it would require a statement of compatibility to both whether the legislation is compatible with human rights and specifically to address whether the legislation is compatible with Australian freedoms. The government considers this approach to be unnecessary and duplicative. It introduces unnecessary red tape into the legislative process.

The most significant aspect of this bill is the idea that Australian freedoms should be prioritised over other human rights. The bill does this by requiring every statement of compatibility to explain how the protection of Australian freedoms is given priority over other human rights. In effect, this elevates some human rights above others. As a matter of principle, we can't accept that—for instance, that the right to freedom of speech should be protected over and above the prohibition against slavery. One of the government's key commitments is to ensure that all rights are treated equally. This position is consistent with international law, which says that human rights are indivisible and universal. This is why in part we have committed to introducing a religious discrimination bill.

As part of the Ruddock review, the government spent many months examining freedom of religion. This review was the most recent major expert consideration of human rights in Australian law and one which expressly took into consideration the principle that all human rights, including the freedom of religion, should be given equal weight. Notably, the report recommended that governments consider clarifying in antidiscrimination legislation the equal status of all human rights, including freedom of religion. The report even made a recommendation emphasising rights are equal and indivisible. Senator Bernardi's bill runs counter to this principle. That position was reflected in the submissions made by churches and other religious bodies on the exposure draft of the religious discrimination bill. Indeed, the equal status of human rights is something that has consistently been emphasised in our consultations on the religious discrimination bill and that we seek to achieve through the bill. For instance, in consultation on the religious discrimination bill the Australian Catholic Bishops Conference and other churches called for explicit recognition of the equal status of human rights. The Australian Catholic Bishops Conference said:

The 'universality' of human rights is well understood and the principle of freedom and equality in dignity and status of all is deeply entrenched in international human rights law, as well as Church teaching. 'Indivisibility' of human rights is perhaps less clearly understood, because there is a long tradition of debate about whether there is a hierarchy of human rights, in which it should be noted, freedom of religion is one of the core or fundamental rights. On the other hand, the World Conference on Human Rights convened by the United Nations in Vienna in 1993 declared that human rights are 'universal, indivisible and interdependent and interrelated'.

I'd also like to outline some sections from the Ruddock review, in which the equal status of human rights was emphasised and recommended. It read:

Commonwealth, State and Territory governments should consider the use of objects, purposes or other interpretive clauses in anti-discrimination legislation to reflect the equal status in international law of all human rights, including freedom of religion.

…   …   …

In the view of the Panel, human rights have the most work to do during times of change and uncertainty. While the Panel did not accept the argument, put by some, that religious freedom is in imminent peril, it did accept that the protection of difference with respect to belief or faith in a democratic, pluralist country such as Australia requires constant vigilance. Accordingly, it acknowledged the timeliness of the obligations under its Terms of Reference to look again at the protection of religious freedom and its relationship with other rights, which are of equal weight and significance.

…   …   …

Importantly, there is no hierarchy of rights: one right does not take precedence over another. Rights, in this sense, are indivisible. This understanding was absent from some of the submissions and representations the Panel received. Australia does not get to choose, for example, between protecting religious freedom and providing for equality before the law. It must do both under its international obligations. Sometimes this will mean one right will 'give way' to another, but this must occur within the framework provided by international law.

…   …   …

UN Charter–based mechanisms include the United Nations Human Rights Council, the subsidiary organ of the United Nations General Assembly responsible for 'promoting universal respect for the protection of all human rights and fundamental freedoms for all, without distinction of any kind and in a fair and equal manner'. The Human Rights Council is required to undertake the Universal Periodic Review—a unique process that involves a periodic review of the human rights records of all UN member states, and which is conducted through an interactive discussion between the State under review and other UN member states. The Human Rights Council has also adopted resolutions on 'freedom of religion or belief' and on the 'elimination of all forms of intolerance and of discrimination based on religion or belief'.

In summary, prioritising the protection of Australian freedoms over other human rights may undermine some of the principles that underpin our democracy. Our extraordinary success in building a prosperous, multicultural and cohesive society rests in part on the idea that all human rights are equal in value and rests on our commitment to protecting them equally. This bill asks the Australian parliament to depart from that commitment. In the interest of all Australians, the government cannot put one human right above another. We have no doubt that Senator Bernardi's intentions are well meant, and we support the intent behind this legislation. Australians deserve to have their rights and freedoms protected, as he has sought to do. However, the mechanisms proposed by this bill cannot be supported.