George Brandis (Queensland, Liberal Party, Shadow Attorney-General) Share this | Link to this | Hansard source

With at most an hour and 20 minutes before the guillotine imposed by the government falls, we are now to proceed to consider the most important piece of human rights legislation before this parliament in 25 years. The Human Rights (Parliamentary Scrutiny) Bill 2010 is the most important human rights bill to be considered by the parliament since parliament passed the Human Rights and Equal Opportunity Commission Act 1986. It tells you everything you need to know about the government's lack of seriousness about human rights that this bill will not get a proper parliamentary debate.

This bill is the ultimate outcome of the process initiated by the Attorney-General in 2008 which led to the National Human Rights Consultation, conducted by Father Frank Brennan. I have with me a copy of the Brennan report, which was published in September 2009. It is a voluminous document running to more than 600 pages, including the appendices. After 10 months of work, more than 35,000 individual submissions by the people of Australia and 66 community roundtables conducted at 52 different locations, many of them in regional and remote Australia, and attended by 5,554 different people, we get an hour and 20 minutes to consider the matter. No Labor Party or Greens senator will ever be able to say, without lying to us, that they care about human rights, after the way in which they have treated with utter contempt the most important piece of human rights legislation in a quarter of a century.

The coalition proposes amendments to this bill, to which I will refer in a moment. If those amendments were to be accepted, we would support the bill, because the core provision of the bill, the creation of a parliamentary human rights committee to scrutinise legislation from a human rights point of view, was an idea proposed to the Brennan inquiry by the coalition—by me as the coalition's spokesman. In our submission to the Brennan inquiry, we had this to say. Having explained the many reasons why we considered a bill of rights was an inappropriate vehicle to advance human rights in Australia, because it would relocate decision making from elected members of parliament to unelected judges, we proposed an alternative model that would locate human rights scrutiny at the heart of the legislative process. We said this:

… the Opposition recommends that expanded Parliamentary scrutiny of legislation from a human rights point of view is a better alternative. The option we propose has the advantage of locating greater emphasis on human rights at the heart of the political system itself, while it is free of the potentially undemocratic consequences of placing unprecedented power to resolve essentially political questions in the hands of the judiciary.

The core provisions of this bill adopt that idea. But unfortunately, because the bill overreaches by defining human rights in terms based not on Australian practice but on international instruments which are not part of Australian domestic law, we could not support the bill in its existing form, and therefore we offer amendments, to which I will return in a moment.

Before I do, let me just say this. For us in the Liberal Party, the protection of human rights is core business. It is why we were formed. It is why we come to parliament every day. It is who we are. We are people dedicated to the promotion and advancement of the rights and freedoms of individual men and women. It was the philosophy espoused by our great founder, Sir Robert Menzies, in his 'The Forgotten People' broadcasts in 1942 and 1943, particularly when he spoke about the four freedoms, following President Roosevelt's identification of them. It was the sentiment which inspired the foundation document of the Liberal Party, our first federal platform, in 1944 and which inspired the document entitled We believe, which set out the core values of the Liberal Party. It was the belief that inspired Sir Robert Menzies when in 1954 he said:

We believe in the individual, in his freedom, in his ambition, in his dignity. If he becomes submerged in the mass, and loses his personal significance, we have tyranny.

And it was the belief that inspired Sir Robert Menzies when, in his last major public speech, to the Liberal Party Federal Council in 1964, in which he addressed broad philosophical themes, he said:

As the etymology of our name "Liberal" indicates, we have stood for freedom. We have realised that men and women are not just ciphers in a calculation …

…   …   …

We have learned that the right answer is to set the individual free, to aim at equality of opportunity, to protect the individual against oppression, to create a society in which rights and duties are recognized and made effective.

If you go to the Liberal Party's website today you will see in a statement of its beliefs that same sentiment. The opening words of that mission statement are these: 'We believe in the inalienable rights and freedoms of all peoples.'

So that is who we are. That is why we come to parliament. If we were to take them at face value, our Labor Party friends would probably say, 'We believe in a fair Australia. That is what inspires us.' If we were to take them at face value, our Greens colleagues would probably say, 'We got into politics because we wanted to protect the environment.' Our National Party friends would tell us, justly, that what inspires them is to protect the interests of people who live in regional and rural Australia. But for us Liberals, why we are involved in politics is because we want to build a society based on respect for the rights and freedom and dignity of every individual man and woman. So we are the human rights party.

I believe the greatest intellectual failure of my side of politics in the 20th century was to cede the language of human rights to parties of the Left, because parties of the Left do not believe. They are not inspired by a philosophy based on concern for the rights of individual men and women. They are inspired by sectional philosophies. They are inspired by a class based view of society. They are inspired by a view that the interests of the collective prevail over the rights of the individual. We in the Liberal Party are inspired by a belief that the rights and freedoms of the individual prevail, that wherever possible they ought to be maximised. Wherever possible, legislation and government ought not to interfere with them. That is the core philosophical difference between us on the Liberal side of the chamber and those on the Labor side of the chamber and their affiliated parties of the Left.

That was an insight that was shared by many writers in the 20th century. Nobody saw it better, by the way, than the great George Orwell, who saw that the rhetoric of the Left in talking about human rights was denied by the reality of their political practice. But the spirit of authoritarianism, not the concern for the freedom of individual men and women, was what ultimately inspired the so-called progressive parties of the Left.

Given our intellectual lineage, given our proud tradition, given that the core provisions of this bill were actually the product of our minds, we want to support this bill. If the opposition's amendments are to be carried, we will support it. Unfortunately, the way in which the government has drafted the bill makes it impossible for us to support it in its current form. There is one particular vice in this bill—I know my friend Senator Michaelia Cash is going to have a little bit more to say about this topic in her contribution to this debate—and that is in the definition of human rights in clause 3 of the bill. In the current clause 3 of the bill, human rights are defined in these words:

h uman rights means the rights and freedoms recognised or declared in the following international instruments—

and then there are seven international treaties listed.

In most cases, we in the opposition have no difficulty with the provisions of, for example, the International Covenant on Civil and Political Rights or the Convention on the Elimination of All Forms of Discrimination against Women. We support them, but there are elements of those treaties that are not part of Australian domestic law. We find it beyond absurd that a government wanting to instate a human rights standard for Australia would have no regard to existing Australian law and the human rights protections contained in Australian law, and base its entire adumbration of human rights standards on international instruments which are not part of Australian law. Not only that, but also for a more technical legal reason, we have a deep concern about it because if these instruments were to be the basis of this very important piece of human rights legislation then, following a line of authorities in the High Court commencing with the infamous Teoh case, it is entirely possible that we could see a result in which these international instruments are incorporated into Australian law by the back door without any parliamentary deliberation or scrutiny whatsoever. That would be an extremely radical change to our law.

So we offer an amendment to replace the definition of human rights in the bill with this definition:

Human rights means the personal rights and liberties which exist under (a) the Australian Constitution, (b) acts of the parliaments of the Commonwealth, states and territories, (c) the common law, and (d) relevant international instruments to which Australia is a party and which have domestic application by Australian law.

Therefore, it recognises every source of human rights that is recognised by the law of Australia, by laws that have either been passed through this parliament or the state and territorial parliaments, or are recognised in an admittedly piecemeal fashion in the Constitution, or which form part of the common law, or which have their source in international instruments which have been given force and effect in Australia by a decision of this parliament. Why would you not do that? Why would you, if you were serious about constructing effective and democratically validated human rights legislation, ignore the entirety of Australian law from the Constitution down and incorporate by reference a variety of international instruments, most of which do not have force and effect in Australian law?

Let me finally say a word about the common law as a source of human rights. I can do no better than refer the Senate to the wonderful Bruce McPherson lecture given by the former Chief Justice of New South Wales, Justice Spigelman, at the University of Queensland on 10 March 2008 called 'The Common Law Bill of Rights', in which His Honour, a man of Labor Party background but one of Australia's most eminent jurists, made the case why so many of the rights that we enjoy today are to be found in the common law. Why would you junk Australian constitutional, statutory and common law and decide to identify and define human rights exclusively by international instruments? We will be moving an amendment to correct that gross error.

We will also be moving an amendment to remove from the bill the provision that requires ministers to publish with legislation a statement of compatibility so as to in effect certify that the bill is compatible with human rights standards. Since the core work of this bill—that is, part 2, which establishes a parliamentary human rights committee—is to give the parliament the task of deciding for itself whether legislation is human rights compliant and, to the extent to which there may be a departure, whether that departure is in the circumstances justifiable or excusable, why would you allow the executive government the power to certify? Our concern is that by allowing the executive government, through the minister, the power to certify that an individual piece of legislation is human rights compatible, you actually defeat the very purpose of the bill, the very purpose of the idea put to the Brennan committee on behalf of the opposition by myself to locate at the heart of the legislative process human rights compliance.

As we know, when parliamentary hearings are held it is very commonplace for public servants from the relevant departments to appear as the last witnesses before a hearing so that, if the department has views on these issues, in the ordinary course of events those views will be heard anyway. To allow the minister this in effect bootstrap power to self-certify human rights compliance relocates the power, or at least shares the power, between the legislative arm and the executive arm of government. It should lie exclusively within the province of the legislative branch of government to conduct this inquiry and make these determinations.

In closing, we urge those opposite who piously—and, I am bound to concede, in some cases with sincerity—claim to be supporters and champions of human rights to see the wisdom of our amendments, not to use this bill as in effect a trojan horse for an unlegislated, undemocratic bill of rights by default. Embrace the core principle of the bill—that is, to locate the scrutiny of legislation from a human rights point of view at the heart of the parliamentary process—and by so doing elevate this parliament's capacity to give effect to human rights standards governed not by what other countries say but by what we, through our democratic processes, have recognised as the various sources of the rights we undoubtedly enjoy.

Sarah Hanson-Young (SA, Australian Greens) Share this | Link to this | Hansard source

The Australian Greens are committed to Australia fully discharging its international human rights obligations at home and abroad. This means greater international respect for and protection of human rights and a stronger international machinery for the protection of human rights, such as the United Nations Human Rights Council and the United Nations treaty bodies. The Human Rights (Parliamentary Scrutiny) Bill 2010 and the Human Rights (Parliamentary Scrutiny) (Consequential Provisions) Bill 2010 are a welcome first step towards human rights protection, but I must also point out that it is disappointing that the government has fallen short of meeting community expectations by failing to introduce a human rights act.

After months and months of consultation in relation to this issue, it was very clear that the majority of community feedback was indeed in support of a human rights act. This was an opportunity to extend to all Australians meaningful and practical protection. Unfortunately it has been missed by this piece of legislation; it is a missed opportunity. Australia is the only Western democracy that does not guarantee the consideration of our human rights by the government, the parliament or the courts through an effective federal constitution or statutory mechanism such as a human rights act.

More often than not, human rights are inextricably linked to human dignity. In the cases of refugees and their families, those experiencing mental illness and other health issues, the aged or Indigenous peoples, these rights cannot be removed from their basic human dignity. The implementation of a human rights act would substantially enhance our democracy and grant many Australians the human dignity expected in our liberal democracy. We note that the government has committed to reviewing Australia's human rights framework in 2014. We urge that the terms of reference of this review include consideration of a human rights act.

Senator Brandis has just spoken about the coalition's concerns in relation to the definition of human rights outlined in clause 3(1) of this bill. The Greens too have serious concerns in relation to how restrictive this definition is. It is unnecessarily narrow. The definition is restrictive, with rights being clearly limited to only those in the seven international instruments listed. This is a mistake. The definition should be more encompassing than the minimum obligations set out by our international commitments. It should take into consideration the purpose of these protections.

Submissions to the inquiry into this legislation pointed out that there are multiple other international sources of rights which the bill could have been expanded to include—for example, but not limited to, the Convention Relating to the Status of Refugees; conventions of the International Labour Organisation, to which Australia is a party; and the UN Declaration on the Elimination of Intolerance and of Discrimination Based on Religion and Belief. The UN Declaration on the Rights of Indigenous Peoples is not included in this bill's list, nor are the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, the International Convention for the Protection of All Persons from Enforced Disappearance, which is not yet in force but something we are looking at, the optional protocol to the convention against torture—the list goes on. These are all conventions and treaties which have not been picked up by this legislation, and that is a mistake.

I am particularly concerned, as many of you would not be surprised to hear, that the Convention Relating to the Status of Refugees has been deliberately left out of this list. It seems ludicrous, at a time when legislation in relation to people smugglers, asylum seekers or the idea of dumping vulnerable people offshore—out of sight, out of mind—is coming before this place on a regular basis, that this legislation will not enable these issues to be considered through our obligations under the refugee convention. When the purpose of the proposed joint committee is to assess the human rights compatibility of legislation before it, excluding key international rights from its scope is not only inappropriate but also inconsistent with basic human rights principles. Expanding the list to include human rights treaties to which Australia is already a signatory would allow for consideration of a broader range of human rights issues when developing legislation.

The Australian Greens disagreed with the majority committee report with regard to the definition of human rights. I spoke at various Senate hearings in relation to this and my report into this bill stands as a record. Given the broad dissatisfaction with the definition amongst submissions, we do not believe the definition is an appropriate initial reference point. It is truly ironic that two years after this legislation was flagged the political climate is such that we have a government currently attempting to dismiss our obligations under protocols and conventions such as the refugee convention. While the Greens recognise that the passage of this legislation is extremely important and will therefore not be opposing it, we remain very concerned that the Convention Relating to the Status of Refugees and the Convention on the Rights of the Child are not explicitly listed.

The role of this bill is to give some direction to the parliamentary joint committee—a broad mandate. In order for the proposed committee to be effective, the bill should provide some guidance in respect of non-absolute or derogable human rights. The Greens agree with the recommendation of the National Human Rights Consultation report that the same limitations with regard to derogable rights set out in the Victorian and ACT human rights statutes should apply federally. Section 7(2) of the Charter of Human Rights and Responsibilities Act 2006 in Victoria states:

A human right may be subject under law only to such reasonable limits as can be demonstrably justified in a free and democratic society based on human dignity, equality and freedom, and taking into account all relevant factors including—

(a) the nature of the right; and

(b) the importance of the purpose of the limitation; and

(c) the nature and extent of the limitation; and

(d) the relationship between the limitation and its purpose; and

(e) any less restrictive means reasonably available to achieve the purpose that the limitation seeks to achieve.

In the absence of a federal human rights act, these limitations should be provided to the joint committee as guidance for their deliberations and reports.

It is desirable for the Australian parliamentary joint committee to have powers comparable to the UK House of Lords and House of Commons Joint Committee on Human Rights. These include, but are not limited to, the power to initiate inquiries into issues raised in findings of United Nations treaty bodies and special procedures of the UN Human Rights Council, such as reports of special rapporteurs, working groups and findings under the universal periodic review process. If all this committee is going to do is look at legislation that the government deems appropriate then it is missing a big part of the role that it could be playing. In the absence of this government's commitment to introducing a human rights act, at least giving the committee an ability to expand its role is something that many of those who submitted to this long review and consultation process would be happy to see taken on board.

I am pleased that the Attorney-General has agreed to consider, as part of the 2014 review, the ability to grant additional powers of inquiry to the parliamentary joint committee. My point is that this could have been included in the bill before us today. Inquiring into and reporting on any matter relating to human rights referred by either house of parliament and inquiring into and reporting on any matter relating to human rights that it sees fit is something this committee should be doing. Let's not just see this committee as a rubber stamp for the government of the day. It will not achieve the objective of human rights being considered by our parliament in deciding and deliberating on the legislation that comes before it.

The effectiveness of the statements of compatibility will rely on their form and their timeliness. The Australian Greens understand and welcome the Attorney-General's commitment to ensuring that all statements of compatibility are laid on the table around the same time as the EM. We understand the statements of compatibility would have the same weight in statutory interpretation as that currently granted to explanatory memoranda and will provide guidance to the judiciary about the parliament's intent. These statements should be drafted to a minimum standard to ensure they are effective. The Greens welcome the Attorney-General's response to some of the recommendations from the committee process. I would also of course like to hear the minister, or the minister representing the minister, in summing up the second reading debate, confirm the commitments that have been made. While we believe that this bill does not go far enough, we recognise the importance of finally implementing legislation following the long-awaited national consultation on human rights.

The consultation panel received thousands and thousands of submissions and the majority expressed the belief that Australia should have a human rights act. This legislation goes nowhere near developing or initiating a human rights act. The work is not yet done and, I would argue, this is just one very small step. I urge the government not to think that they can tick this off their list and move on. At the next federal election, it would be wonderful to see more than just one party go to the electorate with a policy for a human rights act.

Trish Crossin (NT, Australian Labor Party) Share this | Link to this | Hansard source

The Human Rights (Parliamentary Scrutiny) Bill 2010 and the Human Rights (Parliamentary Scrutiny) (Consequential Provisions) Bill 2010, which establish the Parliamentary Joint Committee on Human Rights, came before the Senate Legal and Constitutional Affairs Legislation Committee, which I chair. I will very briefly cover the background to and the two main issues in this legislation.

As Senator Brandis outlined, this legislation arises out of the work of the Brennan committee, chaired by Father Frank Brennan AO. That committee looked at questions such as whether or not we should have a human rights act or a human rights charter in this country and how we should deal with legislation—how we should go about assessing whether it does or does not comply with our human rights obligations. The Brennan committee undertook extensive consultations right around this country. They were tasked with seeking the views of Australians on three key questions: which human rights should be protected and promoted, whether those human rights are currently sufficiently protected and how we might better protect those human rights.

To cut a long story short, the committee presented their report to the government in 2009 and made 31 recommendations. There were three main things the committee said should be done. The first was that there should be a federal human rights act based on the dialogue model. The second was that legislation should be accompanied by statements of compatibility with Australia's human rights obligations. The third was that a joint committee on human rights should be established to review all bills and legislative instruments.

What we have before us is not a human rights act. However, this legislation implements the other two main recommendations—the introduction of statements of compatibility for bills and legislative instruments and the establishment of a new joint parliamentary committee. A fourth leg of the Brennan committee's recommendations was that the functions of the Human Rights Commission should be expanded to include the examination of bills at the request of the proposed joint committee on human rights. That is not included in the legislation before us today, but I think it will become part of the new committee's mandate to pursue that issue.

This will be a new joint parliamentary committee. No doubt it will take some time to find its feet. During the inquiry there was a lot of discussion about, and in our recommendations we have examined a range of issues relating to, whether or not this committee should operate like the Senate Standing Committee for the Scrutiny of Bills. Should it have matters referred to it or should it be able to itself determine what it looks at? Should it just be restricted to legislation that comes before it? Should it have the ability to write to the minister and seek clarification or should it just look at legislation and compile a statement of compatibility and that is it? Should it report to both houses of parliament or to only one house of parliament or should it report only to the minister? All of those issues were discussed by the Senate committee. For those people who are interested, the committee's consideration of those issues is summarised in the committee's report, magnificently put together by the secretariat.

My committee has made a number of recommendations about the way it believes the new joint parliamentary committee should operate. We do not see those recommendations reflected in this legislation because I think that would be too binding on the new committee. I think the new human rights committee has to get itself established, work out exactly how it is going to operate, work out exactly what its role is and start to do the work. What we have suggested is that the committee should, after 12 months, have a look at how it is going and have a look at the definition of human rights—essentially self-assess whether it is achieving what this legislation sets out to achieve. I do not think this legislation sets in stone what this committee should do for ever and a day. It is to be a new committee. We are going into uncharted waters. We are stepping outside the scrutiny of bills and making the terms of reference a lot broader. I think that this committee should be able to—and will, hopefully, if it is performing effectively—undertake what is, in effect, an action research project on itself. It should continually self-assess and modify and improve what it is doing.

There are two contentious issues here, as alluded to by Senator Brandis. I think that Senator Brandis personally does not want to go anywhere near a legislative instrument for human rights in this country and that perhaps his personal judgment has clouded the view of the opposition. There are two essential areas of disagreement that we are dealing with today. One is that this legislation covers seven core United Nations human rights treaties. There was a lot of debate in the committee about whether it should be seven, whether it should more than seven, as Senator Hanson-Young proposed, or whether it should be none at all. I have a lot of time for former senator Barney Cooney and former senator Michael Tate, who gave evidence before our committee. Former senator Barney Cooney was of the view that the committee should have a wide ambit like the Scrutiny of Bills Committee, which looks at reversal of the onus of proof, a Henry VIII clause, retrospectivity. Those are very black and white issues, but he still had the view that you instinctively know what a breach of human rights is and that perhaps senators and members on that committee should have no parameters, no paradigm, and should instinctively know whether or not legislation is right. He had the view that the Scrutiny of Bills Committee has much more superiority and much more leniency than what was being prescribed for this committee. I think people would find his and former senator Michael Tate's comments, which are in the Hansard, interesting to read.

The other key issue is the definition of human rights, whether it is too prescriptive, whether limiting this committee to the seven core treaties disregards the instincts of members of parliament about what is in breach of a human right and whether the proposed committee should combine with the Scrutiny of Bills Committee or remain separate. Essentially, the question is: what will this new Parliamentary Joint Committee on Human Rights actually do?

The Legal and Constitutional Affairs Legislation Committee's view was that we welcomed the establishment of this committee, that it will provide a platform for Australian human rights discourse and that, at the end of the day, it should provide statements of compatibility. As I said, my committee was of the view that, because this is a new parliamentary committee, it should have the flexibility to develop and mature over the months and years and over the course of its review of legislation. We came to the view that those seven treaties were at least a way to start.

While the establishment of this committee is not a charter or a human rights act, it is recognition of some of the issues and concerns that were raised during the dialogue. I fully understand that this matter has been a source of comprehensive debate in this country and that it polarises people. Do we have a human rights act or do we just set up a parliamentary committee or, somewhere in between, do we have a charter? This government has taken the view that a joint committee of this parliament will be established in the first instance. I hope that is not the end of the discussion and debate. I hope we can move towards at least having a charter of human rights in this country. But I am afraid that, unless we see some change of attitude in the opposition, any charter we establish may well be wound back, as we see the Liberals in coalition in Victoria are trying to do in that state at this time.

I urge people to have a look at this report and the recommendations of our Senate committee, if they are interested in this dialogue. From my point of view I think this is a good place to start and I commend these two pieces of legislation to the parliament.

Michaelia Cash (WA, Liberal Party, Shadow Parliamentary Secretary for Immigration) Share this | Link to this | Hansard source

I too rise to speak on the Human Rights (Parliamentary Scrutiny) Bill 2010 and the Human Rights (Parliamentary Scrutiny) (Consequential Provisions) Bill 2010. I will commence my remarks on these two pieces of legislation by confirming what my colleague Senator Brandis has stated to this chamber. The Liberal Party is the party of human rights in Australia. We are the only political party represented in the Senate which was formed for the very purpose of protecting the rights and freedoms of individuals in this country. No other political party in this place can lay claim to that premise. In that regard, the Liberal Party has stated on the record that it agrees with the principal purpose of the legislation that is currently before this chamber, which is to create a parliamentary human rights committee. Indeed, much to the chagrin of the Labor Party, the proposal for such a parliamentary committee was the opposition's principal recommendation, as set out by shadow Attorney-General Senator George Brandis, to the National Human Rights Consultation which considered whether or not Australia should have a bill of rights.

However, the legislation in its current form is completely unacceptable. We say that it is unacceptable because it contains inappropriate material which would introduce into the consideration of Australian domestic law a variety of international instruments which the Australian parliament has itself not enacted. For the benefit of those people who are listening to today's broadcast, the Labor Party proposes by this legislation to define your human rights as an individual Australian as the rights and freedoms recognised or declared by seven core United Nations human rights treaties which, I reiterate, are not part of Australian domestic law and have not been enacted as such by the Australian parliament.

For the benefit of those listening in, these are the treaties by which the Australian Labor Party says your human rights should be defined: the International Convention on the Elimination of All Forms of Racial Discrimination, the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, 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 Convention on the Rights of Persons with Disabilities. That is it. Notwithstanding that the principal measure of this bill reflects the adoption of coalition policy, the coalition does not accept the definition of human rights in terms of the seven international instruments and the possible introduction by the back door of those instruments into Australian domestic law without the proper scrutiny of the Australian parliament. The government's proposed definition of human rights, in relying upon international instruments as a source of human rights law, overlooks completely—as my colleague Senator George Brandis puts so eloquently—the fact that the Australian Constitution, domestic statutes in this country and the common law in Australia are not only the true repositories of human rights in this country but also the rights routinely enforced by our courts.

It is important that we understand the background of the bills we are currently debating. It is Labor Party policy, and it has been confirmed yet again by Senator Hanson-Young in her speech to this legislation that it is also the Greens' policy, to introduce a bill of rights in Australia. Both Labor and the Greens claim this is the best way to recognise and protect the human rights and freedoms enjoyed by all Australians. Senators will recall that in 2007 the Labor Party committed to undertake public consultation on the issue as a precursor to introducing a bill of rights. Whilst this Labor Party policy was confirmed by the current Attorney-General in his speech on 3 October 2008, he changed the policy direction and gave the impression that he was watering it down by stating that this public consultation would focus on but not be limited to a statutory charter of human rights.

The reason for this change in the policy direction of the Australian Labor Party and the impression of watering down the policy was in response to a significant number of ALP luminaries making it clear that a statutory bill of rights was a potential recipe for disaster and would weaken rather than strengthen human rights in Australia. I refer in particular to the former Premier of New South Wales the Hon. Bob Carr, who as long ago as 2001—10 years ago—published an article in the winter 2001 issue of Policy, the journal of the Centre of Independent Studies, setting out his reasons for opposing a bill of rights. In 2008 Mr Carr was again out in the public domain warning the Labor Party of the folly of a statutory bill of rights or a charter of rights. Senators will also recall that then New South Wales Labor Attorney-General John Hatzistergos was vocal in his opposition to a bill of rights or a charter of rights, and was quoted in the Sydney Morning Herald in 2007 under the banner headline 'Attorney-General rejects charter of rights for NSW'.

It is little wonder that the Australian Attorney-General, Mr McClelland, announced on 21 April 2010 that the Australian government would not introduce a charter of rights or a human rights act in the immediate term. However, it is important to recognise that the words 'in the immediate term' are and always will be Labor Party code for: 'We can't achieve a statutory bill of rights at the moment, so we will make some incremental progress by establishing a parliamentary joint committee on human rights. We will also incorporate our own Labor definitions on specific terms such as the meaning of human rights, notwithstanding that our proposed definition of human rights completely ignores the human rights that Australians currently enjoy under our domestic law. And then, having incorporated our own Labor definitions, we will tell the opposition that we are adopting their preferred policy option and we will not be pursuing a statutory bill of rights.'

As senators will know, the Liberal Party has been opposed to a statutory bill of rights or a charter of rights for years. Again, the reasoning for our opposition can be found in the submission by the federal opposition to the National Human Rights Consultation in June 2009, which was authored by the shadow Attorney-General, Senator George Brandis SC. Senator Brandis, as our shadow Attorney-General, has spoken, and has also published a number of informative articles, on the folly of a statutory bill of rights.

The debate to have or not to have a bill of rights enshrined in legislation has been the subject of considerable political, academic and community debate for a number of years. There are strongly held views on both sides of the debate and no consensus has appeared despite a wide-ranging debate over a very long period. I have indicated the views of two Labor luminaries who are opposed to a bill of rights being enshrined in legislation, and there are many more examples of prominent academics, politicians and community leaders who oppose the move. Given that the codification in legislation will have the effect of modifying our constitutional rights in the area of human rights, the Australian community expects and has the right to expect that there be an alignment on the issues between the political parties. This has not occurred, and it would be divisive to impose such a significant change on the Australian community without political alignment on the issue. A statutory bill of rights will require the identification and codification of our existing rights in legislative form. Such codification will identify those rights to which we are presently entitled, but reducing them to legislative form will likely have a limiting effect on the application of those particular rights.

There are many other facets of the argument to have or not to have a statutory bill of rights but, given the limited time available to me, it is sufficient to say that the Liberal Party, like so many in this country, opposes such a proposition. In respect of the legislation before the Senate, the opposition position is clear. We have said to the government that, given that we are opposed to a statutory bill of rights or a charter of rights, we are willing to accept—and it is indeed our policy, as so eloquently stated by Senator Brandis, that we will accept—the current parliamentary committee. However, we will not accept the definition of 'human rights' as proposed by the Labor Party. We have made it very clear that we do not accept the definition as drafted in part 1 and we will seek to amend the bill in committee to overcome these objections. In respect of part 3 of the bill, we will seek to delete it from the bill. If the government rejects our amendments, we will be opposing the legislation in its present form.

In the event that the bill does fail to achieve majority support before the Senate, I would argue that the Senate in any respect is still able to consider the issue of legislation and instruments adhering to human rights by relying on the terms of reference of the Senate Standing Committee for the Scrutiny of Bills. It should be obvious to senators that the terms of reference of the Senate Standing Committee for the Scrutiny of Bills provide a considerably wider scope of powers than the proposed powers of the Human Rights Subcommittee of the Joint Standing Committee on Foreign Affairs, Defence and Trade. I would argue that the scope of the terms of reference of the Senate Standing Committee for the Scrutiny of Bills as they apply to the issue of human rights enable the committee to traverse far wider considerations than the proposed definition of human rights in clause 3 of the current bill.

I would argue that the proposed definition of human rights in clause 3 directs the work of the Human Rights Subcommittee to a number of specific international instruments and fails to recognise that the source and substance of human rights law in Australia includes the Constitution, federal and state statute law, and the common law emanating from decisions of Australian courts. I would also suggest that the policy intent behind the current bill is based on a conscious decision by the Labor-Greens alliance to elevate UN treaties to the same status as Australian domestic laws, notwithstanding the fact that UN treaties are not the legislated law of any parliament of Australia and in most cases, as has been so eloquently put by Senator Brandis, have not been the subject of robust debate in this parliament.

I would further argue that if this bill is agreed to in its present form it will require future legislation and instruments to be drafted having regard to the provisions of the seven UN treaties, as set out in clause 3, and further require the committee to ensure that future Australian legislation is aligned with the policy objectives and the provisions of those seven UN treaties. The intentional combining and fusing of UN treaties with Australian domestic law is sure to be fertile ground for pro-active human rights lawyers who will seek to exploit any gaps in the expanded area of human rights law which will undoubtedly occur as UN treaties and Australian domestic law are combined into one.

Perhaps we will even see future appeals against ministerial decisions referred to a UN judicial body rather than the Australian High Court. I say that because many in this place will remember when the United Kingdom agreed to join the European Economic Community. It did so for what it believed were justifiable economic reasons. However, later, to the chagrin and alarm of some unsuspecting law-makers in the UK, they found out membership of the European Union brought with it a requirement to accept the supremacy of European law where there was a conflict between the laws of the member states and the European Union laws. The issue of potential supremacy of UN treaties over domestic law and the potential for appeals to be made to a foreign judicial authority is an area of law which should be of concern to all law-makers in Australia.

It is also interesting to note that Labor senators on the Senate Legal and Constitutional Affairs Legislation Committee appeared to recognise that the definition of human rights contained in the bill was so encompassing in its application and scope that they are leaning towards a review of the bill after a mere 12 months in operation. They also understand that there are flaws in relation to the way clause 3 of the bill is currently drafted. Those laws can only be amended by adopting the coalition's amendments in relation to the definition of human rights.

The other area of concern for the coalition is part 3, which deals with statements of compatibility. Part 3 of the bill requires statements of compatibility to accompany proposed legislation. The coalition does not see the need for statements of compatibility. Their standing would be, at best, that of an explanatory memorandum or a second reading speech. There is also a risk that a declaration of compatibility, or incompatibility, by the minister might be regarded as conclusive when, in fact, it is merely the expression of the opinion of the executive government. The whole point of enhancing the parliament's ability to scrutinise the human rights impact of legislation is to empower the parliament rather than the executive; it is the opinion of the parliament, not the executive, that matters in deciding whether legislation is human rights compliant. It would also be more appropriate for the committee to inform itself of the opinion of the executive government than to create a procedure in which, in effect, the executive certifies a statute for compliance with human rights obligations and thereby pre-empts the deliberations of the parliamentary committee itself.

In closing, I reiterate that the Liberal Party is the party of human rights in Australia. We are the only political party represented in the Senate, as Senator Brandis has already stated, which was formed for the very purpose of protecting the rights and freedoms of individual Australians in this great country. No other party in this place can lay claim to that.

The bill as it is currently drafted will not enhance the human rights of Australians. In fact, the bill overlooks the fact that the Constitution that Australians hold so dear, domestic statutes and common law are not only the true repositories of human rights in this country but also the rights that are routinely enforced by Australian courts. Human rights in Australia should not be measured in terms of international instruments being a source of human rights law, particularly when those international instruments have not been the source of robust debate in this parliament. For the reasons I have stated, if the coalition's agreements are not accepted we will not be supporting the bill. (Time expired)

Louise Pratt (WA, Australian Labor Party) Share this | Link to this | Hansard source

I am pleased to speak on the Human Rights (Parliamentary Scrutiny) Bill 2010 and related bill. The legislation is about a forum for greater parliamentary scrutiny of human rights and will establish a committee that will enable the early and ongoing consideration of human rights issues in policy and legislative development.

The Labor government takes very seriously its obligation to human rights within this nation. On 21 April 2010, we launched Australia's Human Rights Framework and outlined many actions the government will take to protect and advance human rights. Personally, I support a human rights charter and I hope this is something we can look to in the future. While the framework does not include a human rights act or charter, the establishment of a new joint committee is a very significant step forward in protecting and promoting human rights in our nation.

The human rights framework is based on five key principles: reaffirming a commitment to Australia's human rights obligations; the significance of human rights education so that people can access their human rights; enhancing Australia's domestic and international engagement on human rights issues; improving human rights protections, including greater parliamentary scrutiny; and achieving greater respect for human rights principles within the community.

Australians have a proud record on human rights—but it is a record that can and must be improved. We should recognise that not all people have the full enjoyment of the human rights that should be afforded to them. To advance human rights both here and abroad Australia is committed to a human rights framework. While the human rights of Australians are in part protected by the three principal sources of our law—our Constitution, the common law and the statutes of both Commonwealth and state parliaments—Mr Nicholas Cowdery AM, QC of the Law Council of Australia says:

Australia is the only Western democracy without an effective federal constitutional statutory mechanism to provide comprehensive parliamentary scrutiny of new and existing laws for compliance with human rights. The mechanisms proposed in these bills are, in our submission, an important step towards addressing this gap.

Similarly, the Australian Human Rights Commission submitted that, in its view, the new joint committee 'will form an important mechanism at the parliamentary level to ensure that the human rights impact of legislation and delegated instruments [is] fully considered as part of the policy development process'.

As someone who has been a participant in the Senate Standing Committee for the Scrutiny of Bills and indeed the inquiry carried out by the Senate Legal and Constitutional Affairs Legislation Committee, I do believe that the bill before us, in terms of access to international human rights instruments and debating human rights as opposed to just relying on the common law and law, is a great step forward.

In addition to this important role of examining legislation, the Human Rights Subcommittee of the Joint Standing Committee on Foreign Affairs, Defence and Trade will advance participatory democracy through its ability to canvass public views and establish a dialogue between citizens and members of the committee on important human rights questions. I have been very pleased to participate in this through the Joint Standing Committee on Treaties, and I do think we can look to the work of that committee when considering how we might like our human rights parliamentary committeeto work. The committee will work with reference to the rights and freedoms recognised or declared in seven core United Nations human rights treaties as they apply to Australia, and the new framework will require all bills to have a ministerial statement of human rights compatibility to ensure they comply with our international obligations. The committee will also be able to examine existing legislation and conduct broad inquiries into matters relating to human rights as referred to it by the Attorney-General. To my mind, broadly speaking, meeting human rights standards is not only an important moral imperative but a material one too. For many people in our nation failure to meet human rights standards prevents them from reaching their potential, accessing justice and making their full contribution to Australian society. This is a test of the way we treat the vulnerable in our community and of the laws that we have before our parliament. So I am pleased that this bill and the Human Rights Framework reaffirm our government's commitment to human rights and community engagement, with a particular focus on ensuring that laws are consistent with Australia's international human rights obligations. I note that the opposition senators stated in their dissenting report on this bill:

In our view, not only is it undesirable to recognize international instruments as the exclusive, or even the main, source of rights; it is fraught with danger to attempt to codify rights at all.

In contrast, the Human Rights Council of Australia said:

It is particularly pleasing that the rights to which the Parliamentary Joint Committee must have regard when performing its functions are all of the rights expressed and declared in the relevant international instruments listed in clause 3(1) of the Bill, as distinct from merely a selection of some of these rights. This will serve to remind the federal legislature that, at international law, Australia has an obligation to observe and respect all rights that are the subject of international treaties to which Australia is a party.

Coalition senators have expressed the view that a more effective way for the bill to address these issues would be for it to avoid ruling in and ruling out particular rights, leaving it to members of the committee, informed no doubt by the submissions before them, to consider what are and what are not relevant human rights.

I think that the coalition overstates its concerns. Essentially, we are talking here about a reporting process. Parliamentary committees are at liberty to make their own decisions about what they do with the information before them. It is one of the reasons I like the idea of a charter of rights. Parliamentary committees are not bound in the way a charter might bind a test of these rights. Like any other parliamentary committee, we would have the capacity to make our own decision based on information before us. Likewise, the Australian community will have the opportunity to judge the decisions of the committee against what is reported against international human rights instruments.

It is appropriate to have a reference point for the committee, which will be the rights and freedoms recognised or declared by the seven core United Nations human rights treaties as they apply to Australia. Universal freedoms and human rights cannot be irrelevant one day and relevant the next. Indeed, many submissions to the committee proposed that the definition of human rights should be expanded to include a wider range of international instruments than the seven core UN conventions currently captured, in order to more accurately reflect Australia's international human rights obligations.

While some provisions of treaties may exist in our national legislation, they do not form part of Australia's domestic law unless the treaties have been specifically incorporated into Australian law through legislation. I note that we are currently going through a process of combining a range of antidiscrimination laws. I look forward to the outcome of those reforms. This principle reflects the fact that agreeing to be bound by a treaty is the responsibility of the executive in the exercise of its prerogative power, whereas law making is the responsibility of parliament.

Finally, one of the really pleasing things about this legislation is that it establishes a dialogue between the executive, the parliament and, ultimately, the citizens of this nation on the issue of human rights in this country. It enables the active consideration of human rights and the seven core United Nations human rights treaties in the process of law making and in consultation with the Australian people. I commend the bill to the Senate.

Brett Mason (Queensland, Liberal Party, Shadow Minister for Universities and Research) Share this | Link to this | Hansard source

The Human Rights (Parliamentary Scrutiny) Bill 2010 is an important bill because human rights are important. Senator Brandis said today that perhaps at times the coalition has been a bit reluctant in their prosecution. He might be right. We should never forget that the rights of individuals—those rights against the state and against molestation by the state—are what founded the Enlightenment and modern liberal democracy. It is those rights and that revolution that changed the face of our world. We liberals and conservatives, sir, invented human rights; collectivists did not. In the battle between the individual and the state about where the prejudice should lie, liberals and conservatives always go with the individual. That lot opposite do not. If you ever need a better example of how important this battle is, the battle for human rights, to save individuals against the depravity of the state, one need go no further than look at the history of the 20th century. The 20th century was a slaughterhouse, with mechanised brutality, slaughter of individuals by the state and by governments. It was deliberate, it was intentional and it was disgusting. The greatest loss of life in human history happened last century, when everyone in this parliament was born. As the great English historian Paul Johnson said:

We have learnt that the destructive capacity of the individual, however vicious, is small; of the state, however well intentioned, almost limitless.

If anyone wonders why Senator Brandis and Senator Cash and liberals and conservatives take human rights seriously, it is because of that. We have seen with our own eyes, with the history of the 20th century, the depravity and the power of the state to destroy individuals on a scale never seen before in human history. That is why human rights are important. Of course, the Left have changed the conversation. We talk about rights against the state—rights of nonmolestation, freedom of speech, freedom of association, freedom of conscience and freedom of religion, as well as property rights, due process and the rule of law. In effect, they are all rights against the state, but the Left now talks about entitlements. We take our heritage back to the Magna Carta at Runnymede and the Enlightenment. The Left, post-Second World War, talk about economic and social rights—health, education and welfare. I am not saying that is not important, but in the battle of the individual versus the state I side with the barons on the meadow at Runnymede, the Enlightenment and liberal conservatism against the 20th century collectivists.

One of the problems with the language of the Left is that they have debased rights. In the end, all rights are not equal. In the same way, political systems are not equal. I ultimately do not trust the Left with saving and protecting our human rights. Many of us would agree with many of the economic and social rights that the collectivists talk about. But, while the Left was busy promoting economic, social and cultural rights after World War II, it did not care too much that half the world did not enjoy civil and political rights. As a columnist recently said, and I urge the Senate to listen to these words: 'Wherever there is a jack boot stomping on a human face, there is always someone to remind us that at least the face had free health and dental care.' You get this line in Cuba, you had it in the Soviet Union and you would have it in the People's Republic of China: 'We can slaughter people, we can mechanise the slaughter and, in fact, we can make it de rigueur for the state, but it is okay because there is free education.'

When it comes to the battle between collectivists, social rights and individual human rights, we have got it right. All political systems and all rights are not equal, because in the 20th century the worst thing from the Left, particularly after World War II, was not the great economic failings—though with enforcing socialism on much of the world they impoverished hundreds of millions of people, and that was disgraceful; that was a failure and it was disgusting—but, far worse, that they believed and they prosecuted the case that all political systems and the rights they accord are equal. In a sentence, that says it all. This lot prosecuted the case that all political systems and the rights they accord are morally equal. As for liberal democracy they say, 'That was just one example of government and just one example of human rights.' But human rights differ. We might talk about right to trial, but what does that matter? Apparently, to the Left all rights are equal. They are not, and none of us on this side ever believed that. I do not agree with that. Rights, just like political systems, are not all equal.

In the end—and perhaps I am showing my conservatism—like Senator Cash and like Senator Brandis, I prefer John Locke and Thomas Jefferson to the 20th century collectivists. In the end, I prefer the parliament of Australia and our courts to the international bureaucrats. Hear this, Mr Acting Deputy President: in the end it is the liberals who are the greatest defenders of human rights, and they have been throughout Western history. (Time expired)

Sarah Hanson-Young (SA, Australian Greens) Share this | Link to this | Hansard source

I seek leave to incorporate my speech on the Social Security Amendment (Student Income Support Reforms) Bill 2011.

Leave not granted.

Christopher Back (WA, Liberal Party) Share this | Link to this | Hansard source

The time allotted for the consideration of the Human Rights (Parliamentary Scrutiny) Bill 2010 and the Human Rights (Parliamentary Scrutiny)(Consequential Provisions) Bill 2010, the Safety, Rehabilitation and Compensation and Other Legislation Amendment Bill 2011 and the Social Security Amendment (Student Income Support Reforms) Bill 2011 has expired. The question is that these bills be now read a second time.

Question agreed to.

Bills read a second time.

The question is that amendments (1) to (3) on sheet 7139 and amendments (1) and (3) on sheet 7140, circulated by the opposition, be agreed to.

The Senate divided. [13:55]

(The President—Senator Hogg)

Question negatived.

John Hogg (President) Share this | Link to this | Hansard source

The question is that subclause 3(2) and part 3 of the Human Rights (Parliamentary Scrutiny) Bill 2010 and table item 3 in clause 2 and item 4 of schedule 1 of the Human Rights (Parliamentary Scrutiny) (Consequential Provisions) Bill 2010 stand as printed. These are opposition amendments (4) and (5) on sheet 7139 and opposition amendments (2) and (4) on sheet 7140.

Question agreed to.

Question put:

That the remaining stages of these bills be agreed to and the bills now passed.

Question agreed to.