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Friday, 25 November 2011
Page: 9661


Senator BRANDIS (QueenslandDeputy Leader of the Opposition in the Senate) (12:30): 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 the 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 in—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; that 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.