Claire Chandler (Tasmania, Liberal Party) Share this | Hansard source

I rise today to speak on the Human Rights (Parliamentary Scrutiny) Amendment (Australian Freedoms) Bill 2019. This bill that we're discussing today seeks to amend the Human Rights (Parliamentary Scrutiny) Act, which establishes the Parliamentary Joint Committee on Human Rights, of which I am a member, so I am well across the important function that this committee has in scrutinising legislation that comes before this place and assessing it for human rights compatibility.

Within the original act from 2011 we have a list of what these human rights are. They are drawn from a number of international treaties to which Australia is a signatory, including the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, the International Convention on the Elimination of All Forms of Racial Discrimination, 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 conventions on the rights of persons with disabilities.

What the bill that we're discussing here today seeks to do is insert a number of new rights into the remit, you might say, of what this committee would be examining. So, as per the bill tabled by Senator Bernardi, that would add in something that we will refer to today as Australian freedoms, being freedom of opinion; freedom of speech; the right to life; the right to protection of the family; freedom of thought, conscience and religion; the prohibition against torture and the prohibition against retrospective criminal laws. I can't deny that the list that I just read out of Australian freedoms, that Senator Bernardi would like to insert into the parliamentary scrutiny act, sounds very sound to me. They are all things that we in this place debate, meditate on and reflect on when we are going about our work as senators. The government certainly supports the desire to better protect the rights and freedoms enjoyed by all Australians, and we understand Senator Bernardi's drive for reform in this area.

As a government, we have demonstrated strong support for freedoms which are the focus of this bill today. Many members of the government have spoken publicly in support of these freedoms and rights. I count myself amongst that number, and in my maiden speech to the Senate I spoke about my concerns with the ongoing push to restrict freedom of speech in Australia in various different arenas.

There are many members of this parliament, both in this chamber and in the other place, who are concerned about attempts to reduce the ability of ordinary Australians, academics, religious leaders and anybody else to freely speak their minds and not to be punished or hauled before a tribunal or a commission for doing so. It's critical to the health of our democracy that Australians can, without inciting hatred or violence, have their say on the issues that're important to them, no matter how contentious these issues are. So I can perfectly understand why Senator Bernardi feels so passionately about the Australian freedoms, so to speak, that he wants us to be considering them in the Human Rights (Parliamentary Scrutiny) Act.

But the question that we have before us today fundamentally is how we should best protect these rights. And it's the view of the government that this private member's bill is not the best way to ensure that Australians have freedom of speech, freedom of thought and freedom of religion. We can see in the contributions from senators on this bill exactly why attempting to legislate these freedoms might be problematic. We have Senator Bernardi today with this bill introducing it to protect Australian freedoms, including opinion, speech, thought, conscience, religion and protection of the family—all things that I fundamentally agree with. Then, on the other hand, we've had Senator McKim's contribution calling for a legislative charter of rights, and no doubt if the Greens and the Labor Party had their way then their legislative list of rights would look quite different to the ones that Senator Bernardi has proposed today. Although I may not agree with my colleagues on the opposition or on the crossbenches in that regard, I accept that a fundamental part of our democracy is that not everyone is going to agree on what should or shouldn't be considered as part of this bill. And that's why it's particularly problematic that we have this bill before us today, in essence attempting to bind us to certain types of human rights or certain freedoms above others.

As tempting as it may be for any particular senator or political party to legislate freedoms or rights which they believe are fundamental, we know that different rights and freedoms clash and that when making laws, as elected members, we are constantly having to balance one right against another and find an appropriate way forward. It's not an easy task but it is a fundamental part of our job.

Once you start legislating for more rights and freedoms, it's easy to end up having an opposite effect to what you intended. Rather than allowing parliamentarians to review legislation with an open mind and stand up for the values they believe are important, what we're really doing is further binding elected members to what we can and can't legislate for. While I absolutely agree that freedom of speech, to give one example, should be closely guarded and protected by this parliament, it's not hard to foresee that passing this bill could open the door for other members in future to add more and more freedoms and rights, depending on their own personal definitions which must be considered and prioritised, until we're at the point of spending our time navigating through a multitude of statements of compatibilities, more than we already do through the existing human rights process, rather than actually focusing on the things that matter to our constituents.

As an elected senator, I don't need this piece of legislation to tell me that a core part of my job is to stand up for freedoms in Australia and particularly freedom of speech. In being elected to this place, I know I have a responsibility to my constituents to legislate on their behalf. I'm sure the same goes for many of my colleagues on the government side and also on the crossbench. I have faith that the people of Australia will continue to hold elected members to account for standing up for these freedoms. I don't believe Australians want governments or political parties to erode their right to speak freely or censor the language they use or the values that they hold. That's why it's no surprise that on 18 May Australians again voted for the coalition government, which believes in the rights of the individual, in preference to the Labor Party, which has demonstrated throughout its campaign that it thinks it knows better than the average Australian. That's why the government doesn't consider the Human Rights (Parliamentary Scrutiny) Amendment (Australian Freedoms) Bill 2019 necessary or appropriate. As I have mentioned, in raising some rights over another, you are in essence restricting our ability as parliamentarians to assess which rights we should be balancing and how that balance occurs.

I commend Senator Bernardi for standing up for freedom of speech and his intent to protect freedom of speech with this legislation. However, we can see that, with the right selected to be part of this bill as an Australian freedom, there is the impossibility of listing in legislation exactly what Australian freedoms are, and what one might consider as Australian freedoms today may not be considered as Australian freedoms in 10, 20, 30 or 100 years time. I certainly hope that freedom of speech will continue to be a fundamental freedom for all Australians, but rights evolve over time and rights change. For example, the bill says that the prohibition against torture is an Australian freedom, but not the prohibition against slavery. I'm sure we could all agree that freedom against slavery is an inalienable freedom that we enjoy in Australia, and the same goes for the rights of liberty, equality before the law and to be held innocent until proven guilty. But, as to whether this bill properly addresses all of those, it doesn't necessarily. Then the question is: should it? Should we be in the business of legislating what are and aren't human rights? As I have said, these rights can evolve over time.

Under the existing law, scrutiny of legislation from a rights perspective 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. Indeed, my role on the Parliamentary Joint Committee on Human Rights is to consider these reports as they come to us. What this bill will require, in effect, is for that scrutiny to occur twice. Any legislation put before the parliament would require a statement of compatibility to both whether the legislation is compatible with human rights and whether the legislation is compatible with Australian freedoms as defined in the bill before us.

We in the government don't believe that adding further layers and duplication to this process would necessarily achieve what Senator Bernardi is intending. While I wouldn't want to put words in his mouth, as I have said, it is certainly a noble pursuit to turn the parliament's mind to some of the freedoms that he's defined in the bill today, but one of the government's key commitments is to ensure that all rights are treated equally. The position of the government in this regard is consistent with international law, which says that human rights are indivisible and universal. This is why, in part, we've committed to introducing a religious discrimination bill that will put freedom of religion on the same footing as other human rights.

Prioritising the protection of selected freedoms and rights over others is a messy task and one which is likely over time to result in further adverse outcomes, no matter how good the intent may be. This is inevitably what happens when we try to raise some rights above others. All rights should be on an equal footing. While the government is sympathetic to Senator Bernardi's intent to ensure that Australians have their rights and freedoms protected, because that's what they deserve—and, as I have outlined today, I'm certainly sympathetic to what he is trying to do here—I cannot support the mechanisms in this bill to try and achieve that.