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Monday, 22 November 2010
Page: 3247


Ms GRIERSON (7:38 PM) —I rise today to speak in support of these historic bills. The Human Rights (Parliamentary Scrutiny) Bill 2010 and the Human Rights (Parliamentary Scrutiny) (Consequential Provisions) Bill 2010 respond to recommendations of the 2009 Brennan review to establish a parliamentary joint committee on human rights, a recommendation which was also made by the Human Rights Subcommittee of the Joint Standing Committee on Foreign Affairs, Defence and Trade in the last parliament.

The committee will examine and report to the parliament on our human rights compliance by issuing statements of compatibility for all bills and legislative instruments introduced to the parliament in reference to the International Convention on the Elimination of All Forms of Racial Discrimination; the International Covenant on Civil and Political 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. The committee will also have broad powers to conduct inquiries into matters of human rights referred to it by the Attorney-General and, like all committees, it will have the power to seek submissions, hold public hearings and examine witnesses.

As a government we are concerned about human rights abuses both in Australia and internationally. As Australians we become concerned when human rights are abused. For example, in my electorate of Newcastle many people are particularly concerned about a young man, Jock Palfreeman, who has been convicted of murder in Bulgaria after trying to protect two youths from an attack by a group of 15 men. I do not comment on the laws of Bulgaria or the legal case, but I can understand how a young man in Newcastle would always try to protect the underdog. Jock’s appeal commenced on 21 October 2010, and I hope that he will receive the sort of procedural fairness that we value here in Australia.

I would also like to reiterate the sentiments of our Prime Minister and welcome the release of Aung San Suu Kyi from house arrest. Aung San Suu Kyi has paid a heavy price for her advocacy of democracy and freedom, and I encourage all Australians to remember and value the freedoms that we experience here in this nation. Many political prisoners continue to be detained in Burma, and I hope that the Burmese authorities will move to release them in the near future, as Aung San Suu Kyi has requested. I also hope she will have opportunity one day to lead the people of Burma.

This Labor government has a proven track record of strengthening our compliance with our international human rights obligations, and we are doing it in a way that unites, rather than divides, our community. Last year I welcomed the entry into force in Australia of the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women. As part of a government led by Australia’s first female Prime Minister, I know that we are leading the charge for greater gender equality and recognition of human rights in the Australian community. But we always need to do more. On the recommendation of the National Human Rights Consultation committee, the now Prime Minister, Julia Gillard, outlined a package of education initiatives earlier this year to foster community awareness of human rights. Included in that package is $6.6 million to expand the community education role of the Australian Human Rights Commission and $2 million over four years for the development and delivery of community education and engagement programs by non-government organisations. A $3.8 million investment in the Commonwealth public sector to improve human rights awareness will further build a culture of respect for human rights. It will allow for the development of a human rights tool kit that will set a benchmark for future policy development and implementation.

But the crux of this legislation, and the linchpin of our efforts to enhance the community’s understanding of and respect for human rights, is the statement of compatibility mechanism, which mirrors section 19 of the British Human Rights Act 1998. What strikes me about this bill is the important role that statements of compatibility could have played throughout Australian history. I take note of the member for Banks’s comments in that regard.

GetUp!’s High Court challenge to the Howard government’s 2006 amendments to the Electoral Act in Rowe v Electoral Commissioner is a recent example. The Sydney Morning Herald described the amendments as ‘Orwellian’ because they led to the disenfranchisement of hundreds of thousands of mainly young voters. Although the court is yet to hand down the reasons for its decision in Rowe, the parliament and the Australian people would have benefited from a statement of compatibility of the Howard government’s amendments with article 25 of the International Covenant on Civil and Political Rights when the bill was first introduced in 2005. The unanimous ruling of the High Court late last week in Plaintiff M61 and Plaintiff M69 that two Sri Lankan asylum seekers were denied procedural fairness further highlights the need for this bill.

The Northern Territory intervention legislative package introduced by the Howard government in 2007, likewise, would have benefited from a statement of compatibility with the International Convention on the Elimination of All Forms of Racial Discrimination or the prohibition against discrimination contained in article 26 of the ICCPR. Article 26 provides:

All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

Given that the Howard government saw fit to suspend the application of the Racial Discrimination Act 1975 in the Northern Territory, it is not unlikely that the bill would have been found to be in contravention of our international human rights obligations. This is the legislation that the Law Council of Australia condemned as ‘utterly unacceptable’ and about which the Northern Territory’s Anti-Discrimination Commissioner, Tony Fitzgerald, was quoted as saying, ‘The suspension of the Northern Territory and the federal race discrimination legislation can never be justified.’ We reinstated the relevant provisions of the Racial Discrimination Act as they applied to the intervention last year. Many would have said ‘thank goodness’.

Although the Howard government may have proceeded with the legislation in each of these circumstances, despite the likelihood that they were incompatible with our human rights obligations, the Human Rights (Parliamentary Scrutiny) Bill would have fostered and will foster a human rights dialogue as an integral step in the legislative process. But in the United Kingdom, as in the Australian Capital Territory and Victoria, statements of compatibility on their own have been deemed to be an insufficient mechanism through which to protect human rights. The United Kingdom has a parliamentary mechanism as well as a judicial mechanism through which declarations of inconsistency are issued, yet the 2009-10 report of the Parliament of the United Kingdom’s Joint Committee on Human Rights reveals that the parliament remains unresponsive in respect of a number of declarations of incompatibility. As the Brennan review recommended, we need a human rights act with a strong presumption in favour of judicial interpretations of legislation that foster rights compatibility.

Long has the Australian Labor Party sought to legislate to transform our international human rights obligations into domestic law. In 1973, and again in 1985, the then Attorney-General, Lionel Bowen, introduced bills into the Commonwealth parliament to enact a statutory bill of human rights. Both times, however, the legislation was defeated. Since then, we have seen the Human Rights Act 2004 in the ACT, implemented by the Stanhope Labor government, and the Victorian Charter of Human Rights and Responsibilities 2006, legislated by the Bracks Labor government. Australian and state Labor governments are clearly committed to protecting and promoting human rights in accordance with our international human rights obligations.

Fundamental to any attempt to protect and foster human rights is a provision, such as section 3 of the British Human Rights Act 1998 and section 32 of the Victorian Charter of Human Rights and Responsibilities Act 2006, that requires the judiciary to interpret legislation so far as possible in accordance with our human rights obligations. The importance of such provisions is highlighted in cases such as Ghaidan v Godin-Mendoza in the United Kingdom. In Ghaidan, the House of Lords read the clause ‘surviving spouse’ contained in paragraph 2(2) of schedule 1 to the Rent Act 1977 so as to extend to include same-sex couples. In doing so, they brought the provision into accordance with articles 14 and 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. I truly hope that, in the not-too-distant future, we will see a national human rights act with a strong judicial mechanism through which to ensure rights compatibility. Only then will we catch up with the rest of the world and enhance the understanding of, and respect for, human rights throughout the Australian community. Like the British parliament, we must bring rights home!

But Senator Brandis has decried the Brennan review as ‘a case study in policy incompetence’. According to Senator Brandis:

 … in a nation such as Australia, the very strength of our liberal democratic culture is the strongest reason why such an instrument—

as a bill of rights—

is redundant.

That is not the view of former High Court Chief Justice Sir Anthony Mason and former High Court Justice Michael McHugh, and it is not my view. Nor is it the view of the United Kingdom, the United States of America, Canada or New Zealand, who all recognise the need to temper the will of the majority with the adjudicative power of the judiciary in order to provide additional protection for human rights. With all due respect to Senator Brandis, I think that the strength of our liberal democratic culture is measured by our protection of human rights—particularly those of the disadvantaged. As in other Western nations, it is my view that a bill of rights would strengthen rather than diminish our liberal democratic culture.

Those rights-sceptics opposite then argued that a statutory bill of rights would undermine parliamentary sovereignty. Legal scholar Tom Campbell even suggested that it may give rise to ‘juristocratic power’. But Jeffrey Goldsworthy has rightly pointed out that democracy is ‘based on a right to participate indirectly, rather than a duty to participate directly, in public decision-making’. Contrary to the view of Senator Brandis and many rights-sceptics, I believe that a statutory bill of rights would not diminish nor undermine democracy or representative government. Under a statutory bill of rights, the Australian parliament would retain the ultimate legislative power to overrule the decisions of the judiciary where it disagrees with a rights-compatible interpretation.

The primary importance of a statutory bill of rights, however, is not in the courtroom. The Director of the Human Rights Law Resource Centre, in an article published in the Age, has pointed out that outside the courtroom human rights law is:

… used to address disadvantage and promote dignity; a fact conveniently ignored by national charter of rights critics.

He goes on to say:

You won’t have read, for example, that the Victorian charter prevented the eviction of a single mother and her kids from public housing into homelessness, or that it assisted an elderly woman with brain injury to get access to critical medical assistance. Or that it helped a woman with cerebral palsy and children with autism to obtain support services. These are common-sense decisions in real-life cases, which show how charters of rights can and do improve lives and promote values such as freedom, respect, dignity and a fair go.

I have to say that I am a strong advocate for a national bill of rights. We stand alone in the Western world as the only jurisdiction without a bill of rights, whether constitutionally entrenched or statute based. I hope that each of us in this parliament will consider that. So often those opposite cite the need to not introduce a carbon pollution reduction system or a carbon tax ahead of the rest of the world. But on human rights, we are well behind.

Professor of Constitutional Law, George Williams, has said, ‘Australians want more reform than this.’ While he is right, the Australian people do want more than simply a parliamentary committee—something I praise and something I welcome—and the human rights dialogue that will be fostered by this bill will be hopefully a significant step along the path to a just and truly equal Australia and to a national bill of rights.

The President of the Australian Human Rights Commission, Catherine Branson QC, has said that these measures have ‘the potential to open up a broader dialogue on human rights at the heart of our democracy’. This is a dialogue that our government supports wholeheartedly. I commend the bills to the House, and I lend my praise to the Attorney-General for at least coming this far in introducing a human rights compliance mechanism into everything we do in this parliament. It is a step that is well received and a step that is long overdue, but I hope it is a step along a journey to a full bill of rights for Australia.