Cory Bernardi (SA, Australian Conservatives) Share this | Link to this | Hansard source

In continuing my remarks in respect of the Human Rights (Parliamentary Scrutiny) Amendment (Australian Freedoms) Bill 2019, I'm reminded of some comments I made in my maiden speech to this place about how we were being thrust into a realm of competing rights, where we had to choose, in a new industry based rights policy, whose rights would prevail over traditional freedoms or traditional rights. Essentially the rights business is a zero-sum game. If you grant rights to an individual, they generally take from someone else's, because one has to prevail over the other. I regretted that that was the case when I made my maiden speech, but I notice it has become increasingly evident in the 13 or 14 years since then. It's a regret that we have to spell out and codify what we regard as our innate and unalienable freedoms in this country.

This bill has chosen a number of rights or freedoms that I believe the parliament should consider in the passage of every piece of legislation or regulation in this country. When I look at the speakers list, I know that the sympathy of many in this place will be with me, but a number of the speakers, I suspect, will be a bit pernickety and try and pick holes in the bill—about whether they should be called 'Australian freedoms' or 'unalienable freedoms' or we should find some other means of justifying opposition. But, in its essence, this bill merely asks the parliamentary resources to assess every piece of legislation through the prism of how it will impact what I consider to be unalienable rights in this country. They should really pass without too much demur.

Freedom of opinion is something that I would hope everyone in this chamber would support. Freedom of speech is a right that has hitherto always been taken for granted but has now been made subject to limitations by the weaponisation of well-meaning legislation such as the Racial Discrimination Act and section 18C. The right to life is probably the most contentious of these rights. We may all have differences of opinion about where life actually begins, but, ultimately, the right to life in this country is a support against the state taking the lives of its citizens. There is the right to protection of the family. The family is the great cradle from which our civilisation extends, so we're right to protect the family. Freedom of thought, freedom of conscience and freedom of religion are particularly pertinent today, as we are discussing and the government has proposed legislation in regard to protecting religious freedoms. That is not without inherent problems, because when you codify particular freedoms you also limit them. This bill will provide an elegant solution. When legislation comes forward it will be examined through the lens of how it will impact peoples' freedom of religion in this country. Will that legislation limit their ability to have peaceful observance of their thought or their conscience or their religious belief?

The right to protection from torture is something one might think is hardly necessary in this country, but that's because we take it for granted. What we've learned in the last decade or so is that what we have previously taken for granted has been under assault. That is true of nothing more than freedom of speech, as I mentioned before, and of freedom of opinion, which is subject to the thought police, as we like to call them. The prohibition of retrospective criminal law is another freedom, a freedom which I always took for granted in this place, and yet I've seen increasing amounts of legislation in which retrospectivity takes place. That includes cases where a government makes an announcement and says, 'From this date, such and such will be taking place,' before legislation has even passed the parliament or where it tries to backdate legislative penalties to cover up some omission that was overlooked, or some loophole that was missed, during the legislative process.

The only thing I'm seeking to do is make this parliament, the media and the public aware of the consequences, the potential infringements and the legislative process of the bills that are proposed by any government and of how they will impact upon their inalienable freedoms. Those freedoms—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 of torture; and the prohibition of retrospective criminal laws—shouldn't be the cause of massive debate. There may be some freedom lovers in this chamber who are looking for a fig leaf to oppose this and will say it's going to increase bureaucracy or maybe add an additional cost to the legislative process. I would counter those arguments by saying that what we're proposing is a part of the legislative process which is already undertaken in respect of ensuring our legislation and our processes here comply with our international obligations under human rights law. We go through exactly the same scenario, where a group of individuals are tasked with informing the parliament about how a piece of legislation complies with our human rights obligations. So why can't we do that with the sorts of things that we have previously taken for granted, but I believe are under assault in this country: our unalienable freedoms? It's a reminder to lawmakers. It is an in-built discipline to say: 'Before we pass this, this is how it is going to impact upon your freedom of opinion, your freedom of speech, your right to life or your freedom from torture or retrospective criminal actions and so forth.' It is just a consideration. It will not cost a great deal of money. It won't make any substantive difference to a piece of legislation, unless it piques the conscience of the members of this place to say, 'Hang on a second, why would we pass this in its current form when it's going to impact someone's unalienable freedoms? Is the cost of doing this worth it, or can we improve it in some way to make sure that these freedoms are protected?'

I truly wish that a bill such as this was not necessary, but I believe it is more necessary now than ever before in our history. We are seeing this continuing battle about competing rights. There is an industry of rights: it is my right to do this, but that right should trump or transgress someone else's right not to. That is the realm in which we are thrust today. Rights have been weaponised. They have been used, misused and abused.

Let us look at what rights all Australians should share. I've tried to encapsulate them. Some of you may indeed say there should be additional rights attached to this. That's your business; I'm happy to accept your amendments. There may be some of you who say, 'These are not Australian freedoms; these are international freedoms, and we should embrace them.' I will take that amendment too, if that's what you want to do. But we have to take more seriously our responsibilities about protecting our way of life, about protecting the freedoms of individuals. The best way we can do that is to inform ourselves about how well-meaning legislation—or perhaps even not well-meaning legislation but any legislation—will impact upon the very principles and the fabric of our society that I've encapsulated in this bill.

I look forward to the contributions from other senators. I hope that this bill will meet with broad consensus and an agreement, and that the opposition to what I've proposed will not be too pernickety and merely an opportunity to dismantle what is well intentioned for the sake of political expediency. It is important that we recognise and we understand exactly how the passage, or the decisions, in this place are affecting individuals right across Australia and will continue to do so for many generations to come. I commend this bill to the Senate.

James Paterson (Victoria, Liberal Party) Share this | Link to 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.

Patrick Dodson (WA, Australian Labor Party, Shadow Assistant Minister for Reconciliation) Share this | Link to this | Hansard source

This private senator's bill, the Human Rights (Parliamentary Scrutiny) Amendment (Australian Freedoms) Bill 2019, was introduced by Senator Bernardi on 23 July 2019. Labor always welcomes debate on important questions about how to better protect human rights in our nation and in the global community, and that's why we have a Human Rights Committee that scrutinises bills that come to the parliament. I have a different view to Senator Paterson on this matter, being a current member of that committee, and I find the work of that committee to be quite constructive and positive for our democracy. However, Labor will not be supporting this bill, for a number of reasons that I'll briefly outline this morning.

This bill proposes an amendment to the Human Rights (Parliamentary Scrutiny) Act 2011 by elevating a series of particular rights, defined in the bill as Australian freedoms, and these 'Australian freedoms' would be enshrined as paramount over other human rights. In his second reading speech, Senator Bernardi declared:

As intended by our liberal-democratic predecessors, these prescribed, unalienable freedoms will be given priority over other human rights. Where competition or conflict occurs, these Australian freedoms will take priority …

Senator Bernardi appears to have taken it upon himself to use this bill to define, for all Australians, which human rights are important and which ones can be relegated to a secondary tier. This determination of the value of fundamental rights for all Australians is from a senator who led, until it was deregistered in June this year, a political party with one representative in parliament out of 227 members. I should add that the one MP representing Senator Bernardi's Australian Conservatives political party—Senator Bernardi himself—was elected to this place as a member of the Liberal Party. To be fair, his Australian Conservatives party did field candidates to increase their federal representation at the election in May. The fact that the Australian people chose not to elect a single member of the Australian Conservatives to either house of the Australian parliament is something that I think must be taken into account in assessing the extent to which the radical proposals in this bill can be seen as representative of the will of the Australian people.

Senator Bernardi's second reading speech on his bill is instructive. In that speech the senator spoke at some length about his usual fears and objections and loathing, including section 18C of the Racial Discrimination Act, which for over 20 years has protected Australians and Australia from the divisive effects of racial hate speech. Yet, despite the support for section 18C from across the Australian community and the mere fact that two previous attempts to gut this provision failed, the federal protections against racial hate speech in section 18 are precisely the kinds of protections that would be undermined should this bill pass. The Australian freedoms which Senator Bernardi claims are being threatened by human rights and by protections against racial hate speech like section 18C and which would be enshrined as paramount in this bill are an eclectic collection. While Senator Bernardi cites the International Covenant on Civil and Political Rights as a source of these Australian freedoms, some do not appear in that treaty. Rather, some of the paramount freedoms Senator Bernardi is seeking to import to Australia and elevate above existing rights appear to be inspired by rights associated with the hard Right of politics in the United States. Given that Australia has its own values, and that those values are not the same as those of the conservatives and religious Right of the United States, it isn't too hard to see why the Australian Conservatives political party established by Senator Bernardi was so comprehensively rejected by the Australian people at the ballot box just this year.

For example, one of the paramount Australian freedoms this bill would protect is the right to protect the family. This sounds like an important right, but it isn't clear that he is referring to the right of respect for the family, contained in articles 17 and 23 of the covenant. If he is, then I wonder if he is aware of the extensive jurisprudence around the right, some of which relates directly to family law and the need for laws to operate in the best interests of the child. But I expect the use of the word 'protection' in place of the word 'respect' is not an accident on Senator Bernardi's part. Perhaps he is seeking to import to Australia, through this bill, US-style rights to bear arms or perhaps he's seeking to import, through this bill, the US-style 'stand your ground' legal defence for killing intruders even when the taking of life isn't in any way necessary. If that's the case, how would that sit with the right to life, which is also included as a paramount Australian freedom in this bill? It simply isn't clear.

I would also add that the highly idiosyncratic approach to the protection of human rights that would be created by this bill includes a blanket protection of freedom of religion. If enacted, this would appear to cut across the work now being done by the government and the opposition regarding new laws in relation to religious discrimination in this country. Labor believes that the issue of religious discrimination is a very important topic. More generally Labor holds that all Australians should be free to go about their lives free from discrimination. Laws that prohibit discrimination are fundamentally laws about fairness, and the Labor Party is the architect of the antidiscrimination law framework in this country. I note that a number of concerns have been expressed about the government's exposure draft bill on religious discrimination, by religious and non-religious Australians alike. Labor believes it is incumbent on members of this place to listen to those concerns. Labor is continuing to consult widely with the Australian community about these concerns and we will carefully review the government's bill on religious discrimination in light of our consultations when the bill is introduced. If passed, this bill from Senator Bernardi would cut across this very important consultation with the Australian people about religious discrimination. For this, and a host of other reasons, Labor will not support this bill.

Nick McKim (Tasmania, Australian Greens) Share this | Link to this | Hansard source

Just as the Labor Party won't support this bill, neither will the Australian Greens. Senator Bernardi, in framing this legislation, has simply cherrypicked his favourite rights—the ones he thinks should be prioritised against and over other rights—and he's stuck them into this piece of legislation in what can only be described as a thought bubble. So, newsflash for Senator Bernardi: balancing various rights, particularly those which may from time to time fall into conflict with each other, is an extremely complex task and that is why in Australia we need a charter of rights.

Ultimately, the rights of Australians ought be embedded in the Constitution but, as an interim step, the Australian Greens are suggesting legislating a charter of rights because we remain the only liberal democracy in the world that does not have some form of legislated or constitutionally enshrined charter or bill of rights. And of course what that means is that parliaments, driven by governments, can continue to erode the fundamental rights of citizens in Australia, and that is exactly what is happening.

Before I explain how that has happened in recent times, let's go back a couple of decades and think about the over 200 pieces of legislation that have passed through state, territory and Commonwealth parliaments in that time which erode fundamental rights and freedoms in Australia. The overwhelming majority of those pieces of legislation that erode those rights and freedoms that Australians have in the past fought and died to protect and enhance have been delivered by both major political parties because there is a bipartisanship on national security matters that is driving this erosion of fundamental rights and freedoms. We are walking down a dark and dangerous path to a police state and a surveillance state in this country, and we are being taken there by the collusion between the ALP and the LNP.

More recently, in fact within the last month, this chamber has passed draconian ag-gag laws. They were again passed with the support of both major parties in this place—in the case of the Labor Party, in direct contravention of the platform they took to this year's election, which made it very clear that Labor were promising not to support ag-gag laws. And yet, within a few short months after polling day, the Labor Party came back into this place and supported extremely draconian ag-gag legislation.

This is important because we are seeing on our streets a significant rise, a blooming, of civil disobedience as more and more Australians take to the streets and demand real climate action from their leaders, from their governments and from their parliaments. And good on them for doing so, because the major parties have had their fingers in their ears for far too long on this issue of climate change and on the issue of protecting nature. We are in an emergency situation. We are facing calamity within a few short decades—potentially, sooner—unless we act to reduce emissions radically.

That's what the people on the streets are telling us. They are telling us to be honest about the emergency. They are telling us to put in place policies that bring our emissions down on a radical downward trajectory. And they are asking us to make sure that the transition—and there has to be a transition—is a just transition, that we do everything we can to look after people along the way.

So we're seeing the environment movement growing, the climate movement growing and the movement to defend wilderness and protect nature growing, and yet major parties in this place are doing everything they can to make protests illegal. We see it in Queensland: absolutely draconian anti-assembly legislation, straight out of the Joh Bjelke-Petersen handbook. This was brought in by a Labor government. We've seen in Tasmania draconian anti-protest laws that were actually knocked down, in part, by the High Court last year, after former senator Bob Brown took an action in the High Court to challenge those laws. And we've seen the ag-gag legislation passed through this place within the last month that criminalises the use of an internet site or a phone service in order to encourage peaceful protest on private land or on public land leased to the private sector.

So the Labor and Liberal parties know very well that they've lost the popular battle over their climate policies. People do not want to see new coalmines built, yet the two major parties both support the Adani mine. People don't want to see the 356,000 hectares of high-conservation-value Tasmanian forests that the Tasmanian parliament agreed in 2013 should be put into national parks and reserves logged. But the Labor and Liberal parties both support the industrial strip mining of those forests—a crime against the climate supported by both major parties.

So free speech and free assembly, and the right to peaceful and nonviolent protest, are under significant threat in this country. In state and territory parliaments and in this parliament we are seeing laws passed which would make it more difficult for people to exercise their democratic right to have a say and their democratic right to peacefully protest. And as the movement grows, as the climate movement blooms and as the movement to protect nature swells in number, we will see these laws more and more regularly come into conflict with the actions of ordinary Australians. That's whether they be elderly people who are saying, 'We helped to make the mess, now we've got to be part of cleaning it up,' or whether it's younger people who are saying, 'We are not prepared to sit by and let you steal our future without a fight.' All of those people and their actions—their good actions, their selfless actions—are being placed at risk by collusion between the LNP and the ALP to continue to remove fundamental rights and freedoms in this country.

I say to the major parties: you can pass all the laws you like in this parliament but you're not going to stop the civil disobedience that is growing exponentially in Australia, where people stand up and say, 'Enough is enough!' They stand up and say, 'No new coal, no new gas and no new oil extraction.' They are standing up and saying, 'No more strip mining of our native forests for woodchips.' They are standing up and saying, 'We're in a climate emergency. We're in a biodiversity crisis, and we demand action.' The number of people participating in those actions on our streets will grow and grow and grow until the major parties in this place start to pay attention.

But I'm sorry to say, the major parties are a long, long way from paying attention on these issues, and that's why the movement will keep growing. That's why you will see more and more people getting arrested. And I support them in what they're doing, because they are taking these actions not because they think it will benefit them but because they understand that we're in an emergency and they want to see policies put in place that look after future generations, whether it be looking after nature, protecting wilderness, keeping the carbon in the forests, keeping the coal, oil, and gas in the ground, telling the truth and being honest about the calamity that we are facing unless we take strong action. Those are the messages that are driving this increased civil disobedience. And no matter what draconian laws you pass, ultimately the people are going to win this one. The vested interests, the corporate donors that buy so many outcomes in this place through their dirty money and their dirty donations, are going to lose ultimately, because when enough people take to the streets, the major parties will have to listen. And I look forward to that day.

I say again for Senator Bernardi to cherry-pick these rights and try to insert them into this bill is an insult. It's an insult, for example, to the refugees who are still exiled on Nauru and in PNG. It's an insult to those people who, for 6½ years, have had their liberties removed, their freedoms denied and their human rights trampled. We've broken people. We've seen people murdered. We've seen sexual abuse and rape, including sexual abuse of children. We've seen a terrible, dark, bloody chapter in Australia's history supported by both the major parties in this place, where people's rights have just been ignored and walked all over. Yet Senator Bernardi, who supported those policies every step of the way, wants to come into this place and set himself up as some kind of champion of rights. The Greens are not going to have a bar of Senator Bernardi's attempt to set himself up as some kind of rights champion. This bill doesn't do that. It might try, but it fails. What it does do is show clearly the kind of rights that people like Senator Bernardi want prioritised above other rights in this place. While we do need to have a discussion about how we prioritise rights in Australia, importantly, that discussion should happen while we are considering a charter of rights. The way to have the conversation about rights in Australia is in a respectful, calm and considered way, as we determine what rights should be enshrined and protected in a charter and how we should enshrine and protect those rights. So we won't be supporting this legislation, and I now move the following second reading amendment:

Leave out all words after "that", insert:

"The bill be withdrawn and redrafted to promote universal respect for, and observance of, human rights and freedoms as outlined in the International Covenant on Civil and Political Rights."

Eric Abetz (Tasmania, Liberal Party) Share this | Link to this | Hansard source

Australians for generations have been willing to pay the ultimate sacrifice in the cause of the virtues of freedoms and the benefits freedoms bring to individuals, families and communities and, indeed, to the wellbeing of our nation. It's not by accident or coincidence that those countries that honour freedom are the envy of the world and the sought-after go-to destinations. One of our great freedoms is that if you don't like us you can leave us. That foundational freedom is denied to many. Senator McKim chuckles in the background. Do people have that freedom in Cuba? Do they have that freedom in North Korea? It is a most fundamental freedom, yet whenever it comes to a discussion of freedoms the Australian Greens can never bring themselves to criticise communist dictatorships. But I'm distracted. Let me repeat this: it's not by accident or coincidence that those countries that honour freedom are the envy of the world and the sought-after go-to destinations.

Not many people leave Australia and, if so, it's for reasons other than our body politic and it's not to live permanently in places such as North Korea or Cuba. It is, therefore, the duty of all of us in this place to honour, defend and advocate for the freedoms for which our forebears so selflessly sacrificed. I detect that this is in fact the motivation behind the bill brought to us by Senator Bernardi. It is a worthy, noble and much-needed commitment, to which this bill seeks to give expression—something to which we've got to recommit ourselves day after day to ensure that these freedoms are protected. So, in principle, I commend the bill and its intended purpose.

The party of which I have the privilege of being a member resolutely commits itself to what are described as the 'great human freedoms' in article 13 of our foundational document, which we believe Robert Menzies wrote. The document states:

WE BELIEVE IN THE GREAT HUMAN FREEDOMS: to worship, to think, to speak, to choose, to be ambitious, to be independent, to be industrious, to acquire skill, to seek and earn reward.

These are fundamental freedoms that were expressed some 75 years ago. In this, the 75th, anniversary of the formation of the Liberal Party of Australia, it is a statement which has withstood the test of time because it is so fundamentally important to our wellbeing. It is, indeed, in our every fibre as Liberals to support those freedoms that I just enunciated out of the Our Beliefs statement. They are freedoms which, yes, are Australian, but I would say to my good friend Senator Bernardi that, irrespective of us being Australians, they are of an even greater authority, being innate, universal and God given. So I say to Senator Bernardi: I know what you're trying to encapsulate, I know what you're trying to defend and advocate for, but freedoms are things which are innate. They are not Australian; they are, in fact, universal. They are God given; they cannot be given by government, because if they can be given by a government they can also be taken away by government. That is why we always have to keep in mind that these freedoms are not things to be played around with by governments or, indeed, for that matter, on occasion, by international bodies.

I can understand Senator Bernardi wanting an Australian discussion about freedoms, because on the international scene it has become somewhat sullied. Indeed, the currency has been demeaned. Have a look at some of the conclusions, so-called, of the Human Rights Committee of the United Nations. How often do they condemn the only democracy in the Middle East—Israel—and yet stay stonily silent about Cuba or North Korea or some of the other countries in the world which we know oppress their people?

Indeed, how often do they have the courage to condemn China? And, when I say 'China', let's be very clear: I do not condemn the Chinese people, but I do condemn the communist government in China, a dictatorship which as we speak has about one million Uygurs in so-called re-education camps. Christian churches are being destroyed and Christian pastors impressed. Falun Gong followers are being imprisoned and, according to a most recent report, subjected to having their organs sold—just an absolutely shocking abuse of human rights.

And yet I say to those that contribute to this debate that I would have preferred commentary on those aspects rather than whether you've got a right to superglue yourself to a street in Brisbane because you're concerned about climate. Really, let's try to get some of these things in perspective—keeping in mind, of course, that, if you do use superglue, you're using a petrochemical product, which, of course, they wouldn't want for us to be producing in any event, so one wonders how they would be demonstrating without the superglue. But once again I move on.

I simply say in relation to China that, if you have a look at the current membership of the United Nations Human Rights Council, you see that, yes, China is a member, as is Cuba, as is Somalia. You can go through the list. So I share what I detect to be the concern of Senator Bernardi: that we have within the United Nations framework a group of countries that have got themselves or their representatives onto human rights bodies when they do not practice the most basic of human rights. And isn't it a great contrast? I thank Senator McKim for his contribution, because the right to superglue yourself to a street in Brisbane, can I say, really is a First World problem. It's a real problem, isn't it, in comparison to people who are facing torture, being killed, being put into re-education camps?

Nick McKim (Tasmania, Australian Greens) Share this | Link to this | Hansard source

What, Nauru? The people you put there.

Eric Abetz (Tasmania, Liberal Party) Share this | Link to this | Hansard source

So let's try to get these things into perspective—and the silliness of the interjection about Nauru, which I will take. The people have freedom of movement. They are given, should they wish it, 30 years permanent residency in Nauru should they wish to take it. Indeed, they can even go to the United States, but do you know why some of these people don't want to go to the United States? It is because the welfare system in Australia is deemed to be better than that of the United States. Is that a real human rights issue? If the United States is good enough for, what, about 250 million people in the world, people that are genuinely concerned about body, life and limb might find it an appropriate place to live as well—not the forum shopping which is dressed up so often and, might I add, so cruelly in the terms of human rights.

When we talk human rights, we shouldn't be seeking to advocate the cause of those that seek to put the better welfare system between the United States and Australia as somehow the determinant of human rights. I would prefer to have a discussion about the death penalty, about the rule of law, about democracy, about religious freedom. They are the issues on which we should be concentrating, and I congratulate Senator Bernardi for bringing such an issue to us to debate and discuss.

I say to my friends in the Greens that, when you talk about increased civil disobedience and hoping there will be increased civil disobedience, you are, in fact, undermining the very fabric of civil society and a democracy, because civil disobedience in the case to which Senator McKim has been referring—namely, Extinction Rebellion, which some of us call 'extreme rabble'—is doing just that. By supergluing themselves to roads and by interrupting people, what they are saying is that their point of view is so important, so right, that they have a supervening right to disrupt people from picking up their children from school or dropping them off at child care and making them late for work—that somehow, they have the right to inconvenience everybody else within the community.

In a civil society, you can demonstrate and put your point of view. The great thing about Australia is that every three years our fellow Australians can pass judgement on the government of the day on whether or not they want them to be re-elected or they want a change of personnel and policy. Indeed, before 18 May the Australian Greens, along with Labor, were trumpeting that this would be the climate change election. They put it front and centre to the Australian people, saying that is what the election was going to be about. What did the Australian people decide? That a more moderate, considered approach was the appropriate one. Indeed, the Australian people made a choice between pain and gain. They asked: 'If we were to follow the Labor-Green approach to climate change, what would the economic pain be?' Of course, that was the question that Mr Shorten and the Greens could never answer and in fact refused to answer. You then move on to: 'Even if we were to implement those policies, what would be the actual gain for the environment?' We know what our Chief Scientist said. He said that, even if Australia were to close down all its CO2 emissions, the impact on the world environment would be 'virtually nil'.

Let's remember this about these people of civil disobedience that Senator McKim seeks to champion. Back in the early eighties there was civil disobedience in the streets of my home state of Tasmania against the construction of a renewable energy plant. When the people asked the question, 'Where are we going to get our energy and electricity from?' the great doyen of the Green movement, on the front page of his local paper, said, 'Easy: a coal-fired power station.' Can you believe that? Dr Bob Brown, head of the Wilderness Society, in opposing a hydroelectricity scheme, said the better alternative would be a coal-fired power station. Fast forward 30 years and where is Bob Brown? Campaigning against coalmining in Queensland. These people are not so committed to the environment as they are to disruption of our community and good commonsense policy.

I say, with the greatest of respect, that in this debate I am more than willing to discuss the issue of environmental policy and the way we should go. But, when people are being imprisoned in China by the hundreds of thousands—the estimate is a million—when Falun Gong followers are being killed and their organs are sold and when Christian churches are being pulled down and pastors are imprisoned, the Greens say the big ticket item for discussion is the civil disobedience on Australia's streets. Talk about privilege; talk about First World problems; talk about a disconnect with genuine reality! In Australia, these people have the genuine opportunity to advocate, to talk, to discuss and to put their point of view. All we ask is: be civil to your fellow Australians, be civil to society at large and allow them to go about their business. What right do you have to deliberately delay a mum from picking up her child from a childcare centre or a dad from taking his kids to school on his way to work?

There is, I suggest, a complete disconnect with the fundamentals here, and I would simply encourage those that seek to take part in this debate to consider the real, fundamental issues that we are discussing. When we are asked by the honourable senator opposite about the need to tell the truth, I would encourage him to consider some of the facts, some of the assertions, some of the hyperbole that is used in the climate change debate and not encourage people to disrupt their fellow citizens. I would encourage him and his fellow Greens senators to consider their position in this regard. With that said, I also remind him, when he seeks to cast aspersions on donations to political parties, which party was the beneficiary of the biggest corporate donation in Australian history. It was the Australian Greens—funny that! It was $1.6 million, if I recall, from one Graeme Wood, and that donation was personally negotiated by the leader of the Greens and Mr Wood, not through an intermediary, and then the leader of the Australian Greens at the time had the audacity to say to the Australian people that he would be forever indebted for that donation. Mr Wood, who made the donation, thought it was a good investment. Just imagine if the leader of the Labor Party or the Liberal Party were to have negotiated personally such a donation and then said, 'I am forever indebted,' and the donor saying, 'It was a great investment.' Can you imagine the outrage? That is where we get the hypocrisy, the duplicity and the double standards, day after day, from the Australian Greens. I think the Australian people are starting to wake up to it, and that is why, when the convoy led by Bob Brown went to Queensland, this convoy of southern superiority was so rightly rejected by the Queensland people, because they saw through the duplicity and they saw through the hypocrisy.

Returning to the Human Rights (Parliamentary Scrutiny) Amendment (Australian Freedoms) Bill 2019, the sentiment is great, the sentiment is good, the sentiment is important. Human rights and those freedoms which we enjoy today are not as a result of parliamentarians sitting around in places like this; these freedoms were bought for us by the sacrifice of those that we commemorate across the avenue from this place, in the Australian War Memorial and its cenotaphs in nearly every single town and city around our nation. It was bought with blood, and we have a duty and an obligation to defend those freedoms, advocate for those freedoms and remember that those men and women who have sacrificed did so to give us the fundamental freedoms that I was able to read out, and I read them out again because they are so worth repeating. As Robert Menzies said in 'We believe':

The real freedoms are to worship, to think, to speak, to choose, to be ambitious, to be independent, to be industrious, to acquire skill, to seek reward.

With great respect I don't think the right to superglue yourself to a street in Brisbane, inconveniencing your fellow Australians, falls into any of those categories. It is a matter of regret that this debate has been subverted in this way and that our concentration has been taken away from the fundamentals. As a Liberal I stand very firmly behind paragraph 13 of 'We believe', which supports those fundamental human freedoms, the great human freedoms that we have enshrined in this country now for many years, and long may they continue.

Amanda Stoker (Queensland, Liberal Party) Share this | Link to this | Hansard source

Fundamental freedoms aren't given to us by governments, they are core to who we are, core to our status as human beings. For people of faith, they are not given to us by our fellow man, they are given to us by God. But the same is true whether one is a person of religion or not. Natural rights inform the development of the common law. The common law evolved slowly and cautiously, aware of the many human failings and frailties we bear, guarding against them and, in doing so, protecting us from a descent into a tyranny that has characterised places like Russia where, without the bulwark of the common law, it was all too easy to, in swift revolution, throw away years of history and implement a system that, while it might have had a bill of rights that promised to protect all kinds of things—things that on paper all sound great—in practice did not protect those things at all.

The common law has done a wonderful job of protecting us against that kind of tyranny. Under the common law, rights were protected. That's not to suggest it was perfect or that no person ever received a hard time—of course there are examples where things went wrong—but, for the most part, the common law has done an excellent job of protecting the rights of individuals against the imposition of the state. It's a really important distinction to make. Let's think about what was possible under the common law. Under the common law slavery was abolished, under the common law child labour was abolished and under the common law universal education was implemented. I could keep going with many more examples. No human rights instruments at international level were required in order to achieve those important protections. Indeed, the implementation of instruments at an international level has not better protected those rights since.

So it's important for us to think about what precisely we want done here. No bill of rights was needed for the Western tradition, stemming as it does from the United Kingdom, to secure the fundamental freedoms of the individual against the state. I notice that Senator Bernardi's explanatory statement for this bill says that it does not intend to establish an Australian bill of rights. No doubt that is Senator Bernardi's intention, and I know he cares deeply about individual freedoms—and rightly so; they are extraordinarily important. But I can't help but think, as I look at this bill, that it inevitably invites a bill of rights, with all of the problems that carries. It invites the expansion of the list of freedoms that he regards as important to include other things that might not have been included on his list, and it invites the expansion of the framework he has established to go beyond merely turning one's mind to these freedoms as laws are formulated and to include many of the other mechanisms that accompany a bill of rights, whether in the states of our country or in the governments of nations overseas.

Though it is well-intentioned and has its heart in the right place, this bill will, I submit, inevitably lead to a bill of rights. So we need to think very carefully about the implications of that. Why should we oppose a bill of rights? Why should we be cautious about implementing instruments that have at their heart these internationally derived agreements rather than the protection of fundamental freedoms in a way that reflects our legal development, our legal history and, indeed, our cultural history?

To understand that, I think it's helpful to go to a speech that the Prime Minister gave only about a week ago to the Lowy Institute. In it he talked about the relationship between Australia and its sovereignty and the international order—our bilateral, multilateral and United Nations-style relationships. He considered the way that there is a tension between the desire to act in Australia's sovereign interests at all times and the desire to seek the approval from international bodies who seek to monitor and approve and offer report cards on whether or not one is sufficiently meeting the standards set by these international bodies. The Prime Minister said:

Knowing who we are and what we stand for is as true today as it ever was.

We will continue to bring clear objectives and enduring values to our international engagement.

Freedom of thought and expression … of spirit and faith … of our humanity, including inalienable human rights.

Freedom of exchange, free and open markets, free flow of capital and ideas.

Freedom from oppression and coercion, freedom of choice,

These have never been more important.

And they are under threat, not just from the direct challenge of competing worldviews, but the complacency of western liberal democratic societies that owe their liberty and prosperity to these values.

Australia does and must always seek to have a responsible and participative international agency in addressing global issues. This is positive and practical globalism. Our interests are not served by isolationism and protectionism.

But it also does not serve our national interests when international institutions demand conformity rather than independent cooperation on global issues.

The world works best when the character and distinctiveness of independent nations is preserved within a framework of mutual respect. This includes respecting electoral mandates of their constituencies.

We should avoid any reflex towards a negative globalism that coercively seeks to impose a mandate from an often ill defined borderless global community. And worse still, an unaccountable internationalist bureaucracy.

That is put so well, and it encapsulates the way we should approach these issues. We need to take care of the fundamental human rights of Australians—absolutely—but we shouldn't be doing it through the framework of that 'negative globalism that coercively seeks to impose a mandate from an often ill-defined borderless global community'. The language of the human rights industry, if I can call it that, indulges that error. After all, human rights sound fabulous. Who could possibly be against the idea of human rights? Everybody likes rights. Everybody lines up to collect their rights. What the common law does is understand that rights are balanced with responsibilities. We give to our communities as much as we take. So we need to think much more critically about how we're going to approach these issues.

I'll give you an example that comes from the international human rights field. There are international human rights instruments like the International Covenant on Civil and Political Rights that attempt to protect the kinds of fundamental freedoms that Senator Bernardi had in mind when he put forward this bill—ideas like freedom of assembly, freedom of speech, freedom of religion. They are all noble, sensible and worth protecting. The idea that we should be free from arbitrary action by governments or free from torture are all most worthy, but they have in common the idea that they are protections from government action against the individual. Compare and contrast that to many of the other international human rights instruments that have followed. They cover matters as broad as rights to education, rights to health, rights to aged care, rights to child care, rights to all kinds of things. And while they are worthy things to have—education is worthwhile and health care is, of course, worthwhile; they are very well intentioned—they are very different in their character. They are demands for the provision of services by the state to the individual for a cost, which necessitates the redistribution of wealth; it necessitates the taxation of some people and the spending on others.

Those things might be worth doing in many circumstances—no-one would argue that Australia's healthcare system isn't worth investing in—but they've got a very different character to a fundamental freedom. Demands for services are not the same as fundamental freedoms, and yet in bills of rights we always find the conflation of these two types of conceptions of rights. They are really very different, but bills of rights jumble the two together. They confuse, I think in the minds of all of us, the role that is to be played by governments, and they, really quite importantly, necessitate the ranking of all of these different types of rights into some sort of an order. Whenever we say that there is going to be a bill of rights, someone—inevitably our judiciary—has to decide which of those rights prevail in circumstances where they clash, as they often do, and we go about ranking them

The overseas experience and the experience from the states of Australia that have legislative bills of rights show that the values that Senator Bernardi so deeply seeks to protect are almost inevitably ranked right down the bottom of the list when it comes time to order those rights in the hierarchy. And that should trouble us—it really should. But that's just one of the many reasons why we should be reluctant to go down the path of a bill of rights, which I suggest this bill, though it is well intentioned and doesn't look like a bill of rights now, inevitably invites.

Compare the constitutional structures of Canada and Australia. Both are federal systems; both share the English common law tradition, the Westminster parliamentary form of elected government—although Australia might be a little more Washminster—and a great deal of history, and yet there is a Charter of Rights and Freedoms that was brought into force in 1982 in Canada. It's a significant constitutional difference. Australia, pretty much uniquely in the Western world, doesn't have a constitutional or national statutory bill of rights. We should see that as a strength for Australia because a jurisdiction like Canada is, in my humble view, far worse for having it. And I'd suggest Britain is too with its Human Rights Act of 1998.

The case against bills of rights in a successful liberal democracy comes on many fronts, but at its core is that these instruments undercut citizens' participation in social decision-making. They transfer too much power to our judges, who, while they do a wonderful job, aren't elected and aren't accountable in the same way that our politicians are. The rights set out in these bills, even like the right to freedom of expression, the right of religion or the right to equality, annunciate very general standards about the place of the individual within society more broadly, and bills of rights offer us all an emotionally attractive statement of entitlements and protections in what are really vague and broad terms.

Up in the abstract sense of abstract rights guarantees, nearly all of us can and do support them. I mean, what sensible person would say they are against free speech or freedom of association or religious liberty? But the problem is that the effects of these bills aren't felt up in the heights of the abstract; they are felt down in the quagmire of detail, of where to draw the line when it comes to something like the limits of speech or defamation law or how speech should manifest in campaign finance rules, for instance.

Repeating the mantra that we have a right to free speech doesn't change the fact that, once we get down into the detail of drawing these lines, there is rarely consensus. Tough calls have to be made about where to draw these lines. Those who happen to disagree on where to draw the lines will disagree about and dispute how this and other rights should play out. And when those who happen to disagree with you can't be easily dismissed as unreasonable or morally blind or evil or in need of re-education—and they shouldn't—despite the sanctimonious sermonising of some people who bandy the term 'human rights' around so often and who most enthusiastically ask for a bill of rights, then the reality is that these things are not simple value judgements about who is morally good and who is morally bad.

It is quite difficult to draw the appropriate line for the limits of these really important freedoms. It is a fact that how rights should play out is debatable, contestable and not self-evident. But using a bill of rights means you transfer responsibility for drawing those lines from this place and the other chamber and take away responsibility from our accountable people who are engaging with those difficult questions of drawing these contentious lines, and the language of rights is used to shunt it off to our judiciary, where they are engaged thereafter in making political value judgements.

So, without a bill of rights in place these difficult, debatable social policy lines are drawn on the basis of elections, of voting, of letting the numbers count. With a bill of rights in place, judges decide. But they vote, too, don't forget. Four justices will beat the views of three. Victory doesn't go to the judge who writes the most movingly, who writes the most persuasively or who makes the most references to moral philosophy in their judgements. They form their own consensuses, their own voting structures, as they decide the limits of these very important rights.

What makes a bill of rights and its transfer of power to judges appear attractive is the unspoken assumption that the moral lines drawn by judges are somehow always the right lines, that a committee of ex-lawyers will somehow have a pipeline to wisdom and greater moral understanding than will people who are plumbers, secretaries, labourers or manufacturing workers. And that's not something I'm prepared to sign up to. Judges are good people, they have good experience, and I know they do their best in their job. But they don't have a monopoly on good morality, they don't have a monopoly on wisdom and they aren't accountable to the secretaries, the plumbers, the lawyers and the manufacturing workers of this country.

Australians should be very glad that we don't have a bill of rights at this point in time. To do so would inevitably politicise our judiciary as we ask them to make, day in, day out, political judgement calls about what the limits of the rights we have as individuals should be. So while I utterly respect the sentiment behind Senator Bernardi's bill and the sincerity with which he wants to protect these fundamental rights—which are, at their essence, matters of natural law, entirely worth respecting—I suggest that the risk it poses of taking us down a bill-of-rights path mean that we should in fact stand against this bill.

Hollie Hughes (NSW, Liberal Party) Share this | Link to 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.

Claire Chandler (Tasmania, Liberal Party) Share this | Link to 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.

Matt O'Sullivan (WA, Liberal Party) Share this | Link to 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.

Dean Smith (WA, Liberal Party) Share this | Link to this | Hansard source

I also rise this morning to make a contribution on Senator Bernardi's private senator's bill, the Human Rights (Parliamentary Scrutiny) Amendment (Australian Freedoms) Bill 2019. In the short time that's available to me, I don't want to reprosecute what I think are the very compelling and comprehensive arguments that have been put by coalition senators in the debate this morning, but I do want to point to a couple of matters.

It's good to see that Senator McKim is in the chamber. I am someone who has served on the Parliamentary Joint Committee on Human Rights with Senator McKim and, for a period, was the Chairman of the Parliamentary Joint Committee on Human Rights. I don't want to recanvass the debate around the substance of Senator Bernardi's bill. To quote Senator O'Sullivan, 'The coalition supports its high intent but doesn't necessarily support the approach that Senator Bernardi has taken.'

That's not to say that it's a debate that we should end or shut down—not at all. I would argue that, if you look at Australian politics over the last few years, there's been a number of themes that are very, very consistent or top of mind in the attitudes of Australians. One is the pre-eminence of economic issues, and I don't think anyone would doubt that as a result of the federal election. The second I would talk to is the point that there is this increasing discussion, whether on the Centre Left or Centre Right of Australian politics, around human rights issues—or liberties, as some people like to call them.

This is an important debate, and some of us will remember that the last time we had a substantive debate on this matter was with regard to the section 18C debate with regard to how to rework or recalibrate discrimination laws in our country. Then, of course, an element of the marriage equality debate in this Senate chamber looked at how best to incorporate peoples' religious attitudes with regard to same-sex marriage, and I think that the parliament struck exactly the right balance by supporting that bill that was brought to this place in its original form.

I'd just like to focus my comments on a slightly different angle. I won't take up all of the Senate's time this morning, but I will come back to this point at a later juncture. I think there's a fundamental issue here with regard to the operation of the Parliamentary Joint Committee on Human Rights. One of the functions of the Australian Senate that is universally poorly understood not only by senators when they first come to this place but also most definitely by members of the House of Representatives is the scrutiny function that the Australian Senate undertakes.

This parliament has three scrutiny committees. It has the Senate Standing Committee on Regulations and Ordinances, it has the Senate Standing Committee for the Scrutiny of Bills and it has the Parliamentary Joint Committee on Human Rights. What makes two of those committees markedly different from the third is that the first two of those committees are comprised solely of senators. The third committee is comprised of senators and members of the House of Representatives. Now, I don't want to be disparaging to members of the House of Representatives, and that's not how this next comment should be interpreted, but senators and members of the House of Representatives go about their duties in different ways, and they put different emphasis on certain elements of their responsibilities as members of the House of Representatives or members of the Senate. I think everyone would agree that senators conduct their scrutiny functions with a high degree of care and a high degree of diligence. I think, in addition to keeping top of mind the sentiment that Senator Bernardi has brought to the Senate on this bill, we should keep our mind open to the idea of making the Parliamentary Joint Committee on Human Rights a better scrutiny committee by having its composition made up only of senators.

Informally, when I was the chairman of the committee, I canvassed this idea with senators and members from other parties, and there's a reticence. They say, 'Senator Smith, we like the idea that it's got members of the House and senators because that means that these human rights issues are top of mind across the parliament.' Well, that might have been the intent, but I don't think that has been the outcome. Actually, it has not been the outcome.

The scrutiny function that the Parliamentary Joint Committee on Human Rights provides is important. I am someone who believes that, if our country has signed up to international treaties, it has a moral and ethical obligation to uphold those treaties. That's why I would like to see perhaps the Joint Standing Committee on Treaties apply its consideration to these matters much more intensely—and perhaps we can modify the way that committee goes about its work. But my first point would be that if Australia has signed up to international treaties then it has an ethical obligation to uphold them. Secondly, I would say that the scrutiny function is not a function that every member of the Australian parliament understands, or understands well, and that that is a scrutiny function that properly falls wholly and solely on the plates of senators. Thirdly, it is important that the parliament's committee structure—whether they be Senate committees or joint parliamentary committees—does, where it is necessary, in very, very prudent ways hold executive government to account. That is exactly the reason why we have a bicameral parliament, which is exactly the reason why the Australian Senate has one of the most well-developed and well-regarded committee systems of any second chamber in the world. So this is an issue that deserves ongoing consideration.

Those senators who are interested in understanding how we got to a Joint Parliamentary Committee on Human Rights in the first place and how we got to this particular debate initiated by Senator Bernardi's private senator's bill might like to take themselves back to the Senate Hansard of 25 November 2011, when the Senate chamber first debated and agreed to legislate for the Human Rights (Parliamentary Scrutiny) (Consequential Provisions) Bill 2010, which is effectively the legislation that gave rise to the joint committee. In that contribution, Senator George Brandis, who was at the time the Deputy Leader of the Opposition in the Senate—and I'm sure Senator Payne will correct me if I'm wrong there—talked very eloquently about why parliamentary scrutiny of human rights issues was important. My colleagues might be interested to learn that he actually supported the creation of the Joint Parliamentary Committee on Human Rights. My final point—and this is why I think Senator Bernardi's matters deserve ongoing consideration—is that Senator Brandis suggested a wider definition of human rights matters when the proposition of a joint parliamentary committee was first brought to the Senate.

So there are a number of elements in the debate this morning. I agree absolutely with the comments of my coalition Senate colleagues that this is an issue that is worthy of development. The high intent of what Senator Bernardi is seeking to achieve does deserve further consideration; we are opposed to where we actually get to in the detail of his private senator's bill. I would encourage my Senate colleagues to think carefully about how they could add their voice to some of the ideas I have about how we could improve the scrutiny function of that joint committee. I believe it should be a committee of senators only. It is not an easy committee to serve and it is certainly not an easy committee to chair. But I think the attitude of all Australians would be that they like the idea of a committee of some type examining and reviewing how we uphold our international treaty considerations. With that, I'll reserve my comments for another time and seek leave to continue my remarks.

Leave granted.

Debate interrupted.