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Friday, 25 November 2011
Page: 9664


Senator HANSON-YOUNG (South Australia) (12:49): 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.