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Friday, 25 November 2011
Page: 9667


Senator CROSSIN (Northern Territory) (13:01): The Human Rights (Parliamentary Scrutiny) Bill 2010 and the Human Rights (Parliamentary Scrutiny) (Consequential Provisions) Bill 2010, which establish the Parliamentary Joint Committee on Human Rights, came before the Senate Legal and Constitutional Affairs Legislation Committee, which I chair. I will very briefly cover the background to and the two main issues in this legislation.

As Senator Brandis outlined, this legislation arises out of the work of the Brennan committee, chaired by Father Frank Brennan AO. That committee looked at questions such as whether or not we should have a human rights act or a human rights charter in this country and how we should deal with legislation—how we should go about assessing whether it does or does not comply with our human rights obligations. The Brennan committee undertook extensive consultations right around this country. They were tasked with seeking the views of Australians on three key questions: which human rights should be protected and promoted, whether those human rights are currently sufficiently protected and how we might better protect those human rights.

To cut a long story short, the committee presented their report to the government in 2009 and made 31 recommendations. There were three main things the committee said should be done. The first was that there should be a federal human rights act based on the dialogue model. The second was that legislation should be accompanied by statements of compatibility with Australia's human rights obligations. The third was that a joint committee on human rights should be established to review all bills and legislative instruments.

What we have before us is not a human rights act. However, this legislation implements the other two main recom­mendations—the introduction of statements of compatibility for bills and legislative instruments and the establishment of a new joint parliamentary committee. A fourth leg of the Brennan committee's recom­mendations was that the functions of the Human Rights Commission should be expanded to include the examination of bills at the request of the proposed joint committee on human rights. That is not included in the legislation before us today, but I think it will become part of the new committee's mandate to pursue that issue.

This will be a new joint parliamentary committee. No doubt it will take some time to find its feet. During the inquiry there was a lot of discussion about, and in our recommendations we have examined a range of issues relating to, whether or not this committee should operate like the Senate Standing Committee for the Scrutiny of Bills. Should it have matters referred to it or should it be able to itself determine what it looks at? Should it just be restricted to legislation that comes before it? Should it have the ability to write to the minister and seek clarification or should it just look at legislation and compile a statement of compatibility and that is it? Should it report to both houses of parliament or to only one house of parliament or should it report only to the minister? All of those issues were discussed by the Senate committee. For those people who are interested, the committee's consideration of those issues is summarised in the committee's report, magnificently put together by the secretariat.

My committee has made a number of recommendations about the way it believes the new joint parliamentary committee should operate. We do not see those recom­mendations reflected in this legislation because I think that would be too binding on the new committee. I think the new human rights committee has to get itself established, work out exactly how it is going to operate, work out exactly what its role is and start to do the work. What we have suggested is that the committee should, after 12 months, have a look at how it is going and have a look at the definition of human rights—essentially self-assess whether it is achieving what this legislation sets out to achieve. I do not think this legislation sets in stone what this committee should do for ever and a day. It is to be a new committee. We are going into uncharted waters. We are stepping outside the scrutiny of bills and making the terms of reference a lot broader. I think that this committee should be able to—and will, hopefully, if it is performing effectively—undertake what is, in effect, an action research project on itself. It should continually self-assess and modify and improve what it is doing.

There are two contentious issues here, as alluded to by Senator Brandis. I think that Senator Brandis personally does not want to go anywhere near a legislative instrument for human rights in this country and that perhaps his personal judgment has clouded the view of the opposition. There are two essential areas of disagreement that we are dealing with today. One is that this legislation covers seven core United Nations human rights treaties. There was a lot of debate in the committee about whether it should be seven, whether it should more than seven, as Senator Hanson-Young proposed, or whether it should be none at all. I have a lot of time for former senator Barney Cooney and former senator Michael Tate, who gave evidence before our committee. Former senator Barney Cooney was of the view that the committee should have a wide ambit like the Scrutiny of Bills Committee, which looks at reversal of the onus of proof, a Henry VIII clause, retrospectivity. Those are very black and white issues, but he still had the view that you instinctively know what a breach of human rights is and that perhaps senators and members on that committee should have no parameters, no paradigm, and should instinctively know whether or not legislation is right. He had the view that the Scrutiny of Bills Committee has much more superiority and much more leniency than what was being prescribed for this committee. I think people would find his and former senator Michael Tate's comments, which are in the Hansard, interesting to read.

The other key issue is the definition of human rights, whether it is too prescriptive, whether limiting this committee to the seven core treaties disregards the instincts of members of parliament about what is in breach of a human right and whether the proposed committee should combine with the Scrutiny of Bills Committee or remain separate. Essentially, the question is: what will this new Parliamentary Joint Committee on Human Rights actually do?

The Legal and Constitutional Affairs Legislation Committee's view was that we welcomed the establishment of this committee, that it will provide a platform for Australian human rights discourse and that, at the end of the day, it should provide statements of compatibility. As I said, my committee was of the view that, because this is a new parliamentary committee, it should have the flexibility to develop and mature over the months and years and over the course of its review of legislation. We came to the view that those seven treaties were at least a way to start.

While the establishment of this committee is not a charter or a human rights act, it is recognition of some of the issues and concerns that were raised during the dialogue. I fully understand that this matter has been a source of comprehensive debate in this country and that it polarises people. Do we have a human rights act or do we just set up a parliamentary committee or, some­where in between, do we have a charter? This government has taken the view that a joint committee of this parliament will be established in the first instance. I hope that is not the end of the discussion and debate. I hope we can move towards at least having a charter of human rights in this country. But I am afraid that, unless we see some change of attitude in the opposition, any charter we establish may well be wound back, as we see the Liberals in coalition in Victoria are trying to do in that state at this time.

I urge people to have a look at this report and the recommendations of our Senate committee, if they are interested in this dialogue. From my point of view I think this is a good place to start and I commend these two pieces of legislation to the parliament.