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Tuesday, 23 November 2010
Page: 3522


Mrs MOYLAN (9:10 PM) —It is interesting that, as far back as 1992—just before I was elected to this House—the Joint Standing Committee on Foreign Affairs, Defence and Trade delivered its first report titled A review of Australia’s efforts to promote and protect human rights. It was tabled in the 37th Parliament. It was a bipartisan report, with the conclusions and recommendations supported by both major parties and a dissenting report from the then Senator Dee Margetts. On the front of the report was a quotation from TS Eliot. It read: ‘Between the idea and the reality… Falls the Shadow.’ In fact, the full quote by TS Elliott is:

Between the idea

And the reality

Between the motion

And the act

Falls the Shadow

The ‘shadow’ between the very thorough 1992 report and its outstanding recommendations, as I said, supported by both sides of this House and the bringing of this legislation before the House has been a very long shadow indeed. It has been about 18 years long.

Human rights are at the centre of our system of governance. Our democratic system is based on the separation of powers and the rule of law is designed to protect individual rights. So it has been a very long priority for Australian society to ensure adequate protection of human rights. It is one thing to enact black-letter law, as I have often said in this place, and quite another to change the hearts and minds of people. In matters to do with the equality of rights and human rights of women, Indigenous people, people with a disability and children in particular, old prejudices and antiquated notions have at times inhibited these rights and the rights of other sections of the community, and the changes have been hard won indeed. So we do have to be vigilant. We have to be always looking out and making sure that we are doing our job. The recommendations that were made for the drafting of the Human Rights (Parliamentary Scrutiny) Bill 2010 are in general very sensible.

In 2007, the Attorney-General announced that the Rudd Labor government would commission a panel—the National Human Rights Consultation—to inquire into how human rights in Australia could best be protected and promoted. The Attorney-General, in his second reading speech on the Human Rights (Parliamentary Scrutiny) Bill 2010 and the Human Rights (Parliamentary Scrutiny) (Consequential Provisions) Bill 2010, said that there was no predetermined outcome in mind. I am not quite sure that that was quite right. One option—a constitutionally entrenched bill of rights—was specifically excluded. Another option—a legislative bill of rights following the model adopted by Labor governments in Victoria and the ACT—I think, it would be correct to say, was the subtext and expected outcome of the entire process.

The coalition’s submission to the National Human Rights Consultation recommended the establishment of a parliamentary committee to consider legislation from a human rights point of view. The following is the relevant portion of the coalition’s submission:

… the Opposition urges the NHRC to recommend against the adoption of a statutory bill of rights as its preferred model. Instead, 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.

Specifically, the Opposition invites the NHRC to consider recommending the establishment of a new Parliamentary Committee (either a Joint Standing Committee or a Standing Committee of the Senate), which would be given the specific task of considering legislation from a human rights point of view.

The new parliamentary committee would able to examine legislation and to conduct broad inquiries relating to human rights referred to it by the Attorney-General of the day. Its operation would be similar to the Joint Standing Committee on Treaties.

The purpose of statements of compatibility will be to inform parliamentary debate and, where appropriate, to justify restrictions or limitations upon rights where those restrictions are in the interests of other individuals or society more generally. The requirement to include statements of compatibility for disallowable instruments extends the responsibility for such statements from the committee to the executive. The workload and cost implications of this must be considered by the Senate committee.

Notwithstanding the fact that the bill reflects coalition policy, there are some concerns about the breadth of the definition of ‘human rights’ in terms of seven international instruments and the possible introduction by the back door of those instruments into Australian domestic law. The coalition supports in principle the establishment of the parliamentary committee, however, it does hold concerns about the balance of the legislation, in particular the definition of human rights.

Before we can ever fully implement and protect human rights, we do have to have a clear idea of what they are. It seems that there are a number of different definitions. I looked up the Amnesty International definition. It defines human rights as the basic rights and freedoms that all people are entitled to regardless of nationality, sex, national or ethnic origin, race, religion, language and other status. Human rights include civil and political rights, such as the right to life, liberty and freedom of expression; and social, cultural and economic rights including the right to participate in culture, the right to food, the right to work and the right to receive an education.

Human rights are protected and upheld by international and domestic laws and treaties. On the international stage part of that process is agreeing to international treaties, and over the years Australia has signed up to many treaties. For a very long time—in fact, for a number of years when I first came into this place and before—these treaties were signed by individual ministers, often without reference to the parliament and in some cases without reference to executive government. That is why under the Howard government we implemented a treaties committee which now oversights all international treaties and makes recommendations to government. This is a much more open and accountable system and I would foresee that such a human rights committee would have a similar role to play. The bill proposes a similar process for the human rights committee of this parliament. As with binding Australia to international treaties without proper scrutiny of the representatives of the people in this parliament, we should take much care in the implementation of human rights and ensure that the process is at all times open and accountable through this parliament.

The Human Rights Law Resource Centre made a strong argument for the bill in their submission to the Senate inquiry. Human rights matter deeply to Australians and they rightly point out that they resonate with Australian democratic values, the rule of law and our sense of a fair go. While Australia has strong democratic and legal institutions, they do not provide comprehensive or even adequate protection for human rights. The patchwork quilt of human rights protection is missing pieces and these ‘inadequacies are felt most keenly by the marginalised and the vulnerable’. As their submission says:

 … human rights are not enjoyed fully or equally by all Australians, including people experiencing homelessness, people with mental illness, Aboriginal Australians, asylum seekers and people with disability.

I would add to that people with a mental illness and children.

Earlier this week I spoke on the private member’s motion of the member for Fremantle regarding the UN Convention on the Rights of the Child. I commend the member for bringing that motion to the House as children are often the greatest sufferers of human rights violations. In speaking on that I shared many alarming statistics, and I feel it is important to share these again. Statistics from UNICEF show that, for every 100 children born today, 30 will suffer malnutrition in the first five years of life, 26 will never be immunised against disease, 19 will have no access to clean drinking water and 17 will never go to school—and, of those 83 that do, 20 will not reach fifth grade. It is also estimated that over one million children are trafficked each year and forced into work.

The Liberal Party recognises that parliament can always do more to ensure that human rights are adequately recognised and that, where competing rights must be balanced, explain the reasons for its decisions. That is why our submission to the consultation recommended the establishment of a parliamentary committee specifically charged with the consideration of legislation from a human rights perspective. However, questions remain as to whether this bill, as drafted, achieves this in the way that is consistent with human rights law in Australia. In particular, the bill requires the proposed committee to have regard to seven international instruments. Some of those instruments, such as the International Covenant on Civil and Political Rights, are not controversial. However, there are others, such as the International Covenant on Economic, Social and Cultural Rights, which contain articles that are aspirational in nature rather than capable of being recognised as justiciable rights in this country.

The coalition recognises, however, that the basic principle in forming these bills is the affirmation of the centrality of the role of parliament in balancing competing rights. It is always very tricky, as we know, balancing competing rights and balancing competing interests. To the extent that the government recognises the parliament as the only true democratically accountable institution of the Commonwealth and it must never abdicate its ultimate policy-making responsibility, the coalition welcomes this measure. Steps can and must be taken to incorporate the appropriate caucus of human rights law, but that is a matter for the other place and I trust that this House will approve the amendments that have been made. As I have said here tonight and on many other occasions in this House, you can have all the black-letter law that you like but it really comes down to changing hearts and minds and getting people to change the way they think about their rights in relation to other people’s rights and interests. I thought that in his speech to the House our shadow minister, the member for Stirling, made some pertinent comments and I will quote a little of his speech given that we are approaching time. He finished by saying:

…the relationships of Australians with each other and their governments are those to be found in the Constitution, the statutes of the Commonwealth and the states, and in the common law. It is a fact that the principles underpinning and deriving from those traditions have informed the international conventions, rather than vice versa. The great and abiding traditions arising from these sources must find expression in these bills if the committee is to do its job.

I say, ‘Hear, hear’ and commend this legislation to the House.