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Friday, 25 November 2011
Page: 9669


Senator CASH (Western Australia) (13:11): I too rise to speak on the Human Rights (Parliamentary Scrutiny) Bill 2010 and the Human Rights (Parliamentary Scrutiny) (Consequential Provisions) Bill 2010. I will commence my remarks on these two pieces of legislation by confirming what my colleague Senator Brandis has stated to this chamber. The Liberal Party is the party of human rights in Australia. We are the only political party represented in the Senate which was formed for the very purpose of protecting the rights and freedoms of individuals in this country. No other political party in this place can lay claim to that premise. In that regard, the Liberal Party has stated on the record that it agrees with the principal purpose of the legislation that is currently before this chamber, which is to create a parliamentary human rights com­mittee. Indeed, much to the chagrin of the Labor Party, the proposal for such a parliamentary committee was the oppo­sition's principal recommendation, as set out by shadow Attorney-General Senator George Brandis, to the National Human Rights Consultation which considered whether or not Australia should have a bill of rights.

However, the legislation in its current form is completely unacceptable. We say that it is unacceptable because it contains inappropriate material which would introduce into the consideration of Australian domestic law a variety of international instruments which the Australian parliament has itself not enacted. For the benefit of those people who are listening to today's broadcast, the Labor Party proposes by this legislation to define your human rights as an individual Australian as the rights and freedoms recognised or declared by seven core United Nations human rights treaties which, I reiterate, are not part of Australian domestic law and have not been enacted as such by the Australian parliament.

For the benefit of those listening in, these are the treaties by which the Australian Labor Party says your human rights should be defined: the International Convention on the Elimination of All Forms of Racial Discrimination, the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, the Convention on the Elimination of All Forms of Discrimination against Women, the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, the Convention on the Rights of the Child and the Convention on the Rights of Persons with Disabilities. That is it. Notwithstanding that the principal measure of this bill reflects the adoption of coalition policy, the coalition does not accept the definition of human rights in terms of the seven international instruments and the possible introduction by the back door of those instruments into Australian domestic law without the proper scrutiny of the Australian parliament. The government's proposed definition of human rights, in relying upon international instruments as a source of human rights law, overlooks completely—as my colleague Senator George Brandis puts so eloquently—the fact that the Australian Constitution, domestic statutes in this country and the common law in Australia are not only the true repositories of human rights in this country but also the rights routinely enforced by our courts.

It is important that we understand the background of the bills we are currently debating. It is Labor Party policy, and it has been confirmed yet again by Senator Hanson-Young in her speech to this legislation that it is also the Greens' policy, to introduce a bill of rights in Australia. Both Labor and the Greens claim this is the best way to recognise and protect the human rights and freedoms enjoyed by all Australians. Senators will recall that in 2007 the Labor Party committed to undertake public consultation on the issue as a precursor to introducing a bill of rights. Whilst this Labor Party policy was confirmed by the current Attorney-General in his speech on 3 October 2008, he changed the policy direction and gave the impression that he was watering it down by stating that this public consultation would focus on but not be limited to a statutory charter of human rights.

The reason for this change in the policy direction of the Australian Labor Party and the impression of watering down the policy was in response to a significant number of ALP luminaries making it clear that a statutory bill of rights was a potential recipe for disaster and would weaken rather than strengthen human rights in Australia. I refer in particular to the former Premier of New South Wales the Hon. Bob Carr, who as long ago as 2001—10 years ago—published an article in the winter 2001 issue of Policy, the journal of the Centre of Independent Studies, setting out his reasons for opposing a bill of rights. In 2008 Mr Carr was again out in the public domain warning the Labor Party of the folly of a statutory bill of rights or a charter of rights. Senators will also recall that then New South Wales Labor Attorney-General John Hatzistergos was vocal in his opposition to a bill of rights or a charter of rights, and was quoted in the Sydney Morning Herald in 2007 under the banner headline 'Attorney-General rejects charter of rights for NSW'.

It is little wonder that the Australian Attorney-General, Mr McClelland, announ­ced on 21 April 2010 that the Australian government would not introduce a charter of rights or a human rights act in the immediate term. However, it is important to recognise that the words 'in the immediate term' are and always will be Labor Party code for: 'We can't achieve a statutory bill of rights at the moment, so we will make some incremental progress by establishing a parliamentary joint committee on human rights. We will also incorporate our own Labor definitions on specific terms such as the meaning of human rights, notwithstanding that our proposed definition of human rights completely ignores the human rights that Australians currently enjoy under our domestic law. And then, having incorporated our own Labor definitions, we will tell the opposition that we are adopting their preferred policy option and we will not be pursuing a statutory bill of rights.'

As senators will know, the Liberal Party has been opposed to a statutory bill of rights or a charter of rights for years. Again, the reasoning for our opposition can be found in the submission by the federal opposition to the National Human Rights Consultation in June 2009, which was authored by the shadow Attorney-General, Senator George Brandis SC. Senator Brandis, as our shadow Attorney-General, has spoken, and has also published a number of informative articles, on the folly of a statutory bill of rights.

The debate to have or not to have a bill of rights enshrined in legislation has been the subject of considerable political, academic and community debate for a number of years. There are strongly held views on both sides of the debate and no consensus has appeared despite a wide-ranging debate over a very long period. I have indicated the views of two Labor luminaries who are opposed to a bill of rights being enshrined in legislation, and there are many more exam­ples of prominent academics, politicians and community leaders who oppose the move. Given that the codification in legislation will have the effect of modifying our con­stitutional rights in the area of human rights, the Australian community expects and has the right to expect that there be an alignment on the issues between the political parties. This has not occurred, and it would be divisive to impose such a significant change on the Australian community without political alignment on the issue. A statutory bill of rights will require the identification and codification of our existing rights in legislative form. Such codification will identify those rights to which we are presently entitled, but reducing them to legislative form will likely have a limiting effect on the application of those particular rights.

There are many other facets of the argument to have or not to have a statutory bill of rights but, given the limited time available to me, it is sufficient to say that the Liberal Party, like so many in this country, opposes such a proposition. In respect of the legislation before the Senate, the opposition position is clear. We have said to the government that, given that we are opposed to a statutory bill of rights or a charter of rights, we are willing to accept—and it is indeed our policy, as so eloquently stated by Senator Brandis, that we will accept—the current parliamentary committee. However, we will not accept the definition of 'human rights' as proposed by the Labor Party. We have made it very clear that we do not accept the definition as drafted in part 1 and we will seek to amend the bill in committee to overcome these objections. In respect of part 3 of the bill, we will seek to delete it from the bill. If the government rejects our amendments, we will be opposing the legislation in its present form.

In the event that the bill does fail to achieve majority support before the Senate, I would argue that the Senate in any respect is still able to consider the issue of legislation and instruments adhering to human rights by relying on the terms of reference of the Senate Standing Committee for the Scrutiny of Bills. It should be obvious to senators that the terms of reference of the Senate Standing Committee for the Scrutiny of Bills provide a considerably wider scope of powers than the proposed powers of the Human Rights Subcommittee of the Joint Standing Com­mittee on Foreign Affairs, Defence and Trade. I would argue that the scope of the terms of reference of the Senate Standing Committee for the Scrutiny of Bills as they apply to the issue of human rights enable the committee to traverse far wider considera­tions than the proposed definition of human rights in clause 3 of the current bill.

I would argue that the proposed definition of human rights in clause 3 directs the work of the Human Rights Subcommittee to a number of specific international instruments and fails to recognise that the source and substance of human rights law in Australia includes the Constitution, federal and state statute law, and the common law emanating from decisions of Australian courts. I would also suggest that the policy intent behind the current bill is based on a conscious decision by the Labor-Greens alliance to elevate UN treaties to the same status as Australian domestic laws, notwithstanding the fact that UN treaties are not the legislated law of any parliament of Australia and in most cases, as has been so eloquently put by Senator Brandis, have not been the subject of robust debate in this parliament.

I would further argue that if this bill is agreed to in its present form it will require future legislation and instruments to be drafted having regard to the provisions of the seven UN treaties, as set out in clause 3, and further require the committee to ensure that future Australian legislation is aligned with the policy objectives and the provisions of those seven UN treaties. The intentional combining and fusing of UN treaties with Australian domestic law is sure to be fertile ground for pro-active human rights lawyers who will seek to exploit any gaps in the expanded area of human rights law which will undoubtedly occur as UN treaties and Australian domestic law are combined into one.

Perhaps we will even see future appeals against ministerial decisions referred to a UN judicial body rather than the Australian High Court. I say that because many in this place will remember when the United Kingdom agreed to join the European Economic Community. It did so for what it believed were justifiable economic reasons. However, later, to the chagrin and alarm of some unsuspecting law-makers in the UK, they found out membership of the European Union brought with it a requirement to accept the supremacy of European law where there was a conflict between the laws of the member states and the European Union laws. The issue of potential supremacy of UN treaties over domestic law and the potential for appeals to be made to a foreign judicial authority is an area of law which should be of concern to all law-makers in Australia.

It is also interesting to note that Labor senators on the Senate Legal and Constitutional Affairs Legislation Committee appeared to recognise that the definition of human rights contained in the bill was so encompassing in its application and scope that they are leaning towards a review of the bill after a mere 12 months in operation. They also understand that there are flaws in relation to the way clause 3 of the bill is currently drafted. Those laws can only be amended by adopting the coalition's amendments in relation to the definition of human rights.

The other area of concern for the coalition is part 3, which deals with statements of compatibility. Part 3 of the bill requires statements of compatibility to accompany proposed legislation. The coalition does not see the need for statements of compatibility. Their standing would be, at best, that of an explanatory memorandum or a second reading speech. There is also a risk that a declaration of compatibility, or incompati­bility, by the minister might be regarded as conclusive when, in fact, it is merely the expression of the opinion of the executive government. The whole point of enhancing the parliament's ability to scrutinise the human rights impact of legislation is to empower the parliament rather than the executive; it is the opinion of the parliament, not the executive, that matters in deciding whether legislation is human rights compliant. It would also be more appropriate for the committee to inform itself of the opinion of the executive government than to create a procedure in which, in effect, the executive certifies a statute for compliance with human rights obligations and thereby pre-empts the deliberations of the parlia­mentary committee itself.

In closing, I reiterate that the Liberal Party is the party of human rights in Australia. We are the only political party represented in the Senate, as Senator Brandis has already stated, which was formed for the very purpose of protecting the rights and freedoms of individual Australians in this great country. No other party in this place can lay claim to that.

The bill as it is currently drafted will not enhance the human rights of Australians. In fact, the bill overlooks the fact that the Constitution that Australians hold so dear, domestic statutes and common law are not only the true repositories of human rights in this country but also the rights that are routinely enforced by Australian courts. Human rights in Australia should not be measured in terms of international instruments being a source of human rights law, particularly when those international instruments have not been the source of robust debate in this parliament. For the reasons I have stated, if the coalition's agreements are not accepted we will not be supporting the bill. (Time expired)