Matt O'Sullivan (WA, Liberal Party) Share this | Hansard source

I too rise to speak on the Human Rights (Parliamentary Scrutiny) Amendment (Australian Freedoms) Bill 2019. At the outset I'd like to commend Senator Bernardi for his contribution and for bringing these issues before the Senate. The rights and freedoms of all Australians are not self-evident nor self-sustaining. It's an important discussion that needs to be perpetuated in this place. On this side of the chamber we support the desire to better protect the rights and freedoms enjoyed by all Australians. We also understand the drive behind this bill and the motivation to enshrine the protection of freedoms in the legislative process. How this can or should be done has been a debating point since before federation and probably in each and every parliament that has sat since 1901. However, we do not believe this bill is necessary for a number of reasons.

As members of this place, we've been elected to serve as representatives for all people of our states—to raise their issues, to stand up for their challenges and concerns, to aid them in their pursuits and to bring their voices to the nation's capital, which they feel at times is becoming increasingly distant. In my first speech I said that my role as a senator for Western Australia, as a representative of around 2.6 million people, is to provide equality of access to our democracy. It's our constituents which guide us in all our considerations in this place. They ground us. They remind us of the impact that the decisions we make here have on them, on their lives, on their families, on their own choices and on their freedoms and rights. They tell us when we get it right, and without hesitation they also tell us quite promptly when we get it wrong.

It's true that Australia has no bill of rights in the same way that the United States has. Despite much discussion at the federal conventions and conferences of the late 1890s, our founding fathers decided not to codify, with the exception of a few basic rights, a bill of rights in our Constitution. They left it up to us here in this place and to contemporary Australian society to reform and evolve over time. They recognised and understood that societal values, norms and opinions change over time—and so too the standards by which we assess, view and perceive freedoms and, in turn, how those freedoms should be reflected in legislation. They also understood that, if enshrined, it would be very difficult for them to mature over time, which would have left us with a situation, as we've seen in many other nations, where society moves on and the legislative and legal processes do not. It is our role as policymakers to ensure we maintain that balance. As a member in this place, I do not intend to abrogate that responsibility to another process. I intend to uphold my obligation to stand up when something isn't right and to ensure that legislation before this place reflects that balance, as I know each of us here on this side will.

With all of this, I also believe that this bill has a number of issues. Notwithstanding its noble intent—and I sympathise with and commend Senator Bernardi for bringing it forward—this bill introduces a completely new concept of Australian freedoms. It's a mix of human rights which exist under the International Covenant on Civil and Political Rights together with 'constitutional and common law protection of property rights'. I do not believe it is clear what 'constitutional and common law protection of property rights' means. Further, there is minimal explanation 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 the prohibition against slavery is not there. The bill says 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. We're also not aware of any public consultation on this issue, and, in the absence of that widespread debate, we cannot accept that this list of Australian freedoms adequately reflects the desires and interests of all Australian people.

We believe that the existing mechanisms for the parliamentary scrutiny of human rights are adequate. Under existing law, this scrutiny is done through the preparation of a statement of compatibility, which 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 whether the legislation is compatible with Australian freedoms. This approach is unnecessary and duplicative. It's our role to take these matters into account through the legislative process, and we have ample opportunity to do that here in this place.

The most significant aspect of this bill is the idea that Australian freedoms should be prioritised over other human rights. This bill does this by requiring every statement of compatibility to explain how the protection of Australian freedoms is given priority over other human rights. As a matter of principle we cannot accept that, for instance, the right to free speech should be protected over and above the prohibition against slavery—a simple oversight I am sure. One of our key commitments is to ensure that all rights are treated equally. This position is consistent with and underpins international law, which says that human rights are indivisible and universal. This is a key reason why we've committed to introducing a religious discrimination bill, which will put the freedom of religion on the same footing as other human rights. We know that a bill such as the religious discrimination bill, which represents a significant change to how we've considered these matters in the past, requires significant consultation, robust discussion and debate over a period of time. Our extraordinary success in building a prosperous and cohesive society rests in part on the idea that all human rights are equal in value and our commitment to protecting them is equally. The bill asks the parliament to depart from that commitment. While we're sympathetic to Senator Bernardi's high-level intent—that Australians deserve to have their rights and freedoms protected; of course we are completely behind that—the mechanisms proposed by this bill cannot be supported.

It's the role of parliamentarians in a responsible parliament to balance human rights with our democratic freedoms, adjacent to community and societal expectations, and to ensure they are reflected in the work we do in this place on behalf of the Australian people. Let's not abrogate this responsibility. It is too significant to hand to another parliamentary process. Rather than a simple statement, the issues which this bill seeks to address must be the subject of perpetual and robust debate by all of us in this place.