James Paterson (Victoria, Liberal Party) Share this | Hansard source

I'm very pleased to have the opportunity to rise this morning to speak on Senator Bernardi's Human Rights (Parliamentary Scrutiny) Amendment (Australian Freedoms) Bill 2019. The government will not be supporting Senator Bernardi's bill, in part because it will duplicate existing processes for assessing the compatibility of legislation with human rights and also because it arbitrarily selects some human rights over others as worthy of additional scrutiny and protection.

However, in speaking against Senator Bernardi's bill, I want to pay tribute to him for identifying a very serious problem, particularly in our human rights industry in recent years in this country, which is that many traditional rights and freedoms that we have valued and sought to protect for hundreds of years in Western societies have been overlooked and diminished in importance and, particularly in resolving the conflicts between those traditional rights and freedoms and other newer more fashionable human rights, it seems that traditional rights and freedoms have come at the expense of that, been diminished and not valued as they should be. I've personally experienced this in the last parliament. I was a member of the Parliamentary Joint Committee on Human Rights, and it very clearly demonstrated the flaw of the parliamentary scrutiny process for human rights. What typically happens is that every bill considered by this parliament has to go to this committee to have its compatibility assessed against a range of international treaties that the Australian government has signed over the years. In theory that sounds like a good idea, but, due to the nature of some of the agreements we've signed over the years and the interpretation of those agreements, this committee has found itself in the bizarre situation of finding that very uncontroversial bills to modestly curtail the entitlement to some welfare payment are in contravention of the international human right to welfare—and other such examples.

No-one has said it better than my colleague from the other place Mr Julian Leeser, who gave a speech in 2018 after having been through this experience, which I'd also been through, as a member of this committee. Those who know Mr Leeser will know he's a very measured, considered, thoughtful member of parliament, who didn't come to the judgement that he ultimately came to about the human rights committee lightly but rather after the painful experience of being a member of that committee for a couple of years and seeing its flaws up close. He gave the speech in July last year, and I apologise to the Senate because I'm going to extensively quote from it because I think it captures very powerfully the flaws with the current arrangements. His proposed solution, in fact, goes much further than Senator Bernardi's proposed solution to this problem. When his speech was released publicly last year, I was only too happy to publicly support him and his call, ultimately, for the human rights committee of the parliament to be abolished.

Mr Leeser and I have disagreed from time to time on questions of human rights, particularly on the question of section 18C of the Racial Discrimination Act and the way in which it impinges on free speech. We had a very robust debate within our coalition party room about that issue. Mr Leeser and I ultimately came to different conclusions on that. But, on this issue, we could not agree any more. He mostly focuses his critique on the human rights committee, but he doesn't spare the Human Rights Commission criticism either, and I think it is worthy criticism of that commission, particularly under its previous leadership, under President Gillian Triggs. Mr Leeser says:

The Human Rights Commission – an organisation designed to be one of our most compelling moral voices is under sustained attack because it is, and has pretty much always been, adventurous and partisan.

That couldn't be more true. In discussing the Parliamentary Joint Committee on Human Rights, he says:

I have served on this committee throughout my two years in this parliament. It is the single most unsatisfying aspect of my work as a parliamentarian.

That's a sentiment I endorse wholeheartedly. He goes on to say:

My critique is not of the individuals—

he also says it is not of the professional secretariat who serve the committee—

but of the structure and functions of this unusual committee.

He says:

For instance, Australians are probably unaware that while these treaties have no protections for freedom of contract or property rights - the rights on which our entire Australian legal system is based, these treaties do protect the right to 'enjoy the benefits of scientific progress and its applications' the right to holiday pay, paid maternity leave; free education; the right to social security; and the right to an 'adequate standard of living'.

These things might be nice to have but really would most Australians consider them to be human rights? And more so than the right to property and freedom of contract?

I wholeheartedly endorse that. This committee focused so much of its time on entitlement to welfare—as an example—and so little time on entitlement to protection of property or freedom of speech or freedom of religion or freedom of conscience or freedom of association. I think it really shows in the work of the committee and the way in which it's been discredited. He goes on to say:

And the assessments—

of the bills—

are not made by Parliamentarians – they have been outsourced to bureaucrats in the name of the Parliament – and here lies the crux of the failure of this committee.

He notes:

… the Human Rights Committee operates differently to every other committee in the Parliament.

In fact, I do not believe it is truly a committee of the Parliament.

I believe it is a bureaucracy that has appropriated the name of the Parliament.

The Committee is about bureaucrats judging Parliament, rather than the Parliament judging human rights.

Often the committee's reports provide merely a collateral attack on the government's legislative agenda in the form of rehashed talking points from left wing and social justice groups that have no connection to 'real' human rights.

Every report finds fault with government legislation and even when you agree with the legislation and do not think the scrutiny report is fair you are told 'this is not about the rights or wrongs of the legislation this is merely a technical assessment of the human rights implications of the law.'

He goes on to say:

Dissent is discouraged and dissenters are ridiculed. Instead committee members just show up to rubber stamp a report prepared by unelected human rights lawyers.

He gives two specific examples of the way in which this committee has failed in its duty to balance rights appropriately:

Recently the committee did a human rights assessment of legislation relating to cashless welfare cards.

…   …   …

According to the Committee's report, the cashless welfare card trial 'limits the rights of social security, the right of privacy and family and the right to equality and non-discrimination'.

As Mr Leeser says:

This committee always puts the rights of the offender over the rights of the community.

To give another example the Government introduced legislation to require a minister to deny travel documents for a child sex offender who is on the register of child sex offenders with reporting obligations. The offender on such a registry cannot travel overseas without permission. The legislation is designed to protect the rights of children in foreign countries from abuse by child sex tourists.

But the committee report was more concerned with the offender's right to freedom of movement, the offender's right not to be separated from their own family members, and whether the prohibition of the offender’s travel amounts to a "criminal" punishment.

This particular piece of legislation and the human rights committee's assessment of it is probably the most damning indictment of the whole process of assessing bills for compatibility with human rights. It placed virtually no appropriate thought on the impact that this bill was designed to have in protecting innocent children from sexual abuse and instead concerned itself with the frankly much less important freedoms of perpetrators of these very heinous crimes. It perfectly encapsulates that failure of balance.

Mr Leeser goes on to call for the abolition of the joint committee. He says:

In abolishing the Parliamentary Joint Committee the Parliament would not be turning its back on human rights but it would be turning its back on the bureaucratisation of human rights.

I turn to Senator Bernardi's bill. Mr Leeser evidently very thoughtfully anticipated Senator Bernardi and others who might try to reform the parliamentary process on human rights. Mr Leeser said:

Some might say: "Why abolish the committee? Why not reform it?" The committee is beyond reform for three reasons first because it elevates treaties (and their interpretation by dubious bodies like the UN Human Rights Council) which have received little public debate such that every law is assessed against them. Australians have never agreed that the right to holiday pay or to the benefit of scientific progress are such important rights that they need to be elevated and given effectively such quasi-constitutional status.

It is one thing for Australia to report on its progress in implementing these treaties it is another thing to assess every piece of legislation against them. When we signed these treaties no one would have expected them to be used for this purpose.

Second equating real human rights abuses like massacres in Syria with asking a drunken sailor in Jervis Bay to take a random breath test, and calling the latter a breach of human rights cheapens the real abuses.

And third other committees are actually doing detailed work considering real human issues through orthodox committee processes weighing up evidence and submissions with committee members exercising discretion and making recommendations to improve legislation such that this committee's very existence makes a mockery of the Parliament's consideration of human rights.

As I said at the outset, Mr Leeser and I have disagreed from time to time on how we should protect human rights and the relative importance of human rights, but I think he's one of most thoughtful members of the parliament, and he didn't come to the conclusion lightly that a committee of the parliament should be abolished because it is so dysfunctional. So I appreciate very much where Senator Bernardi is coming from.

Organisations like the Parliamentary Joint Committee on Human Rights have not put emphasis on the traditional rights and freedoms. They have not stood up for freedom of speech, conscience, property, association or religious liberty and, whenever those rights come into conflict with other rights, they always seem to come off poorer. Those in the human rights industry are very fond of saying that no right is absolute. All rights are limited and, when rights clash, they have to be balanced against each other. But that balancing always seems to come in favour of newer rights like the right to nondiscrimination and at the expense of traditional rights and freedoms. So, when the right to freedom of speech conflicts with the right to nondiscrimination, the right to nondiscrimination always prevails. When the right to freedom of association comes into conflict with the right to nondiscrimination, the right to nondiscrimination always prevails. It's true for conscience, for religious liberty and for many other things.

But I want to end on a optimistic note. There is good news on this front, and that is that this government under Prime Minister Scott Morrison and particularly under the Attorney-General, Christian Porter, is not favouring the traditional human rights industry approach of always allowing new rights to prevail over traditional rights, and the best evidence of that is the proposed religious discrimination act, which the government has released for public consultation and which the Attorney-General has done an excellent job stewarding through to this point. I look forward to further improvements in that bill to better protect religious liberty and its closely related freedoms.

This is a bill which says that an ancient freedom like religious liberty is worth protecting, it is inadequately protected and it needs to be better protected in Australia. It's a bill which recognises that freedom of speech is an indispensable part of religious liberty, that you cannot enjoy religious liberty if you don't at the same time also enjoy freedom of speech and have the opportunity to share your beliefs about faith in the public square. It's a bill that recognises that people like me who have no faith at all—I'm personally agnostic—also benefit from the protection of religious liberty, because religious liberty is a freedom for all Australians; it's the freedom to hold belief, it's the freedom to have no belief at all, it's the freedom to change your beliefs throughout your life or to reaffirm your beliefs if you so choose and it's a freedom that we all benefit from having safeguarded and protected but which has been inadequately protected in recent years.

And I'm sorry to say that organisations like the Parliamentary Joint Committee on Human Rights, on which I served, did very little to advance the cause of rights like this. When considering questions relating to religious liberty, freedom of speech or freedom of association, too often the committee overlooked or downplayed their importance and instead pursued other human rights. The truth is that the human rights debate globally has got off track from the real and serious human rights abuses that are still occurring in this world and that trouble all of us in this chamber equally, instead spending its time on the new frontiers of human rights, such as the international human right to broadband, when we have really substantive and systemic human rights abuses taking place.

Senator Bernardi is well within his rights and on solid ground when he draws attention to the flaws of our current framework for assessing compatibility of human rights. I think that has been a point well made by Mr Leeser and others. But I don't agree with the proposed solution, because essentially it duplicates the flawed processes that are already in place and makes an arbitrary assessment of the human rights that are worth protecting and those not worth protecting. For example, one omission is that it does not mention the prohibition against slavery. I'm sure it's just an oversight. But it's one among many in Senator Bernardi's proposed bill. For these reasons, the government will not be supporting Senator Bernardi's bill.