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Monday, 20 September 1999
Page: 8357


Senator COONEY (1:30 PM) —The Human Rights Legislation Amendment Bill (No. 1) 1999 makes some amendments to that law which affects the human rights of Australians. It is made necessary, amongst other things, by the decision in Brandy's case, which said that the system as it used to exist could not stand with chapter III of the Constitution. So this is a means of giving people an ability to vindicate rights that they have, and that is as it ought to be.

Senator Greig was talking about going to the courts. The idea under the old system was that people should be able to vindicate their rights in a way that was quick and fair, of course, and of reasonable cost. Hopefully, that will not be lost when it goes to the Federal Court.

I think that Australia may gain by matters going to the Federal Court, because there is need for a jurisprudence at the level of the Federal Court to tell Australians what their rights are. In contrast to comparable countries, Australia is not well equipped with legislation. I think England now has a human rights act which incorporates the European Convention on Human Rights. So it has legislation. The United States, of course, has its rights constitutionally guaranteed. Canada has an act of parliament, and so does New Zealand.

So Australia is alone amongst like countries in the sense that it has not got legislation as specific as the legislation that operates in those countries. But it has got other great institutions which look at legislation in a way that I think could well bear emulation in other places. For example, may I refer to the Scrutiny of Bills Committee, a fine committee which looks at legislation against certain tests, which are really tests that go to the issue of civil liberties. Can I also mention the Regulations and Ordinances Committee, which is now well chaired by Senator Coonan, who is here, which again looks to see whether or not legislation—or in this case, delegated legislation—accords with those principles of justice which any decent community should think were correct.

While I am mentioning people in that context, I see the Deputy Clerk, Anne Lynch, and also Mr Peter O'Keefe, who have served with those committees. They will attest to the very effective work that those two committees have done over the years. It does show the use that parliament can make of its committees and the approach that the parliament can take, if it is so minded, towards seeing that it as a legislature ensures that the laws that Australian makes are in accordance with those human rights that we want. I think you, Madam Acting Deputy President Crowley—since we are mentioning people—were a member of the Scrutiny of Bills Committee. I think you and the Deputy Clerk, Anne Lynch, went off to England. I think it was the first all women's committee that this parliament sent overseas. I think Senator Patterson also joined that group.

What I want to illustrate by the address I have given so far is that parliament itself should never forget that it has obligations to human rights and obligations to see that the legislation that comes out of this place is in accordance with the rule of law, which is really what we are talking about when we talk about human rights. Rights are a concept that must be married to the concept of the rule of law—that overarching body of values and principles by which we all live and which, when it is all said and done, the world has seen the need for throughout history.

I would just like to go down a list of codes that have, over the centuries, attempted to do what in a small way we are attempting to do here. If you look back over the millenniums there are the matters about which we used to learn in history, such as the Code of Hammurabi; the Ten Commandments, which is a classic one for a country like ours; the Charter of Cyrus the Great; the Code of Manu in the west; the Magna Carta; the Koran; the Bill of Rights; and the Declaration of Independence. The Atlantic Charter was made during the war. After the war, in 1948, we had the Universal Declaration of Human Rights. In 1966 there was the International Covenant on Economic, Social and Cultural Rights. There was the International Covenant on Civil and Political Rights and so on. The concept of enforcing human rights is embedded in our history and, hopefully, embedded in our souls and our minds. This legislation we are talking about today is absolutely essential.

People say that human rights are a sort of add-on and that they are not terribly important. Not only are they important but they are the essence of what it is to be human. In my youth, which was some time ago now, like all people of that time I was interested in cowboy stories. There was one novel I remember reading called The Ox-Bow Incident by Walter Van Tilburg Clark. It was about a lynching.


Senator Schacht —It was a very good movie, too.


Senator COONEY —It was a very good movie, as Senator Schacht says. The story went that people were apprehended by a lynch party—a group of cowboys—who then, on the most convincing of evidence, as they saw it, hung them. They carried out justice as they saw it ought to be carried out. Of course, it turned out that they were wrong. They had applied lynch law instead of going through the processes. People often condemn those processes, but they are absolutely essential for people to go through if they are to get justice. A terrible injustice was done.

The other story, which more people may have read, was To Kill a Mockingbird by Harper Lee.


Senator Schacht —Another good movie. It won an Academy Award.


Senator COONEY —Another good movie. Again, it shows what human rights are all about and the processes you must go through if you are going to get justice and fairness.

I think we can all go back over our lives and remember the injustices done to us and, no doubt, the injustices we have done to others. That is the sort of thing that remains in the mind rather than whether you earned a particular sum of money in a particular period, although that of course is important. It is in that context that I say that although we discuss in this chamber time and again, and properly so, the economic forces that rule the world, we do not spend enough time on looking at the forces of justice that should prevail around the world and should prevail in this society.

This parliament always has new issues to look at. One of those issues is determining whether there are any invasions of human rights in relation to matters that are contracted out from government. We have a mindset that matters run by the Public Service, matters that are in the public hands, are subject to scrutiny by parliament. But a problem has arisen with contracting out services. I will give an illustration of that: contracting out the detention of people—I would say the imprisonment—under the Migration Act. That is now in private hands and the contract is not as available as it should be.

I have discussed this matter by letter with the Minister for Immigration and Multicultural Affairs, Mr Ruddock, who has done much work in this place in relation to Amnesty International. He is known for his appetite to see that civil rights are properly exercised. He has offered to show me the contract, as long as I keep it private. That is a generous offer but an offer that cannot be usefully accepted where you want such matters to be made available to the public. He says it is not so much the commercial-in-confidence point that he wants to take but rather the issue that, if contracts are available to the public, then there might be all sorts of legal actions, with people being sued, and it is all likely to get out of hand.

I do think that contracts should be made available to the public—it is the taxpayers' money that is involved—so that people's rights and, in particular, their human rights can be protected, in the sense that parliamentarians should be able to see whether contractors are carrying out the contracts as they should be. One of the ways to do this is for parliamentarians to visit the places where we have others incarcerated. But it is also proper that contracts—from now on, in any event—should be made on the basis that they be available to be scrutinised publicly. In any event, I thank Mr Ruddock for the offers he has made in that regard.

The bill itself has all the best intentions, but one of the problems—a very big problem which has been spoken about by previous speakers in this debate—is the issue of how all members of the public can make use of Commonwealth legislation to help vindicate their rights. We have the Human Rights and Equal Opportunity Commission Act of 1986, the Racial Discrimination Act of 1975—a seminal act in this area—the Sex Discrimination Act of 1984 and the Disability Discrimination Act, of which Senator Evans so eloquently spoke before. It is easy enough to make legislation; the real issue is how we can make the provisions of those acts available to the people who might want to exercise them.

We come back to one of the great issues in this parliament, and that is the issue of legal aid. The taxpayers' dollar must be spent jealously, and we must have due regard to the priorities that are to be given. But, if we do not devote more resources to enabling people to exercise their rights, the whole structure will be available only to those who can afford it and, as has been said by speakers before me, that is not a good thing.

It is time that this parliament exercised its mind on how to get that done. We need more money and more resources, yes; but we must also see how things can be done much more expeditiously in this electronic age. We really ought to look at it. We have to protect human rights in terms of the legislation that comes out of this place. We have to ensure that the actual provisions that are made do not insult the rights that people have. We have to make those rights available to them.

We as a nation have taken a very big step over the last few days in terms of vindicating universal human rights. That, of course, as has been mentioned in this debate on a couple of occasions, has to do with the issue of East Timor. If we do not believe in human rights and the rule of law, and if we do not attach the importance that we should to those issues, then of course we should not go to East Timor. We have chosen to do so because we consider that there are basic values, entitlements and issues that should surround the lives of us all and that, if they are to be prejudiced, there comes a time when we have got to do something about them.

Australia does not have the protections it should have in its formal structures and laws. On the other hand, there is a culture in the community which is very protective of rights. Again, the East Timor situation has shown that. During the committee stage of the debate, I may have more to say about these issues. This bill presents an opportunity for a debate which should take place again and again. Parliament is most admired for its vindication of rights and for the rule of law. It is good to see that this is an occasion on which we can keep that tradition going.