Human Rights Consultation and beyond

On behalf of my fellow committee members Mary Kostakidis, Tammy Williams, and Mick Palmer I thank you for being here at the Press Club today or for tuning in wherever you may be. Mick who is in Singapore addressing an Interpol conference sends his apologies. I am delighted to acknowledge the presence of Philip Flood who stood in for Mick at many community roundtables when Mick was otherwise engaged countering piracy on the high seas. Having traversed the country so extensively, we saw a Press Club Address as one way of reporting back to those 6000 Australians who attended our community roundtables and the 35,000 who made submissions. Critics of our findings and recommendations have claimed that we have been attentive only to the elites in Australian society. We have been privileged to meet with a vast array of our fellow citizens many of whom are bonded by a commitment to respect and dignity for all, even when they disagree how rights are best to be protected and promoted in contemporary Australia. We also commissioned very detailed research by Colmar Brunton, including 15 focus groups conducted in cities and regional areas throughout Australia, a detailed random telephone poll of 1200 respondents, and in depth devolved consultation with persons from vulnerable groups and NGOs who assist and accompany them — elites with a difference!

Chairing this committee has been a rare privilege for me. This is only the second time in my life I have accepted a job from government. If the Murdoch press has its way, it will also be my last. Usually my views on Church-State relations preclude such involvement. My blooding in human rights came during the days of Sir Joh Bjelke Petersen's ban on political demonstrations. I wrote a book about it, espousing legal change. Years later, Wayne Goss was elected with a commitment to recognizing the right of public assembly. I was privileged to work as a consultant to that exercise. Eleven years ago I published a book Legislating Liberty with my reflections on bills of rights in light of my experience as a Fulbright Scholar at Georgetown University, walking distance from the US Supreme Court. I returned to Australia opposed to a constitutional bill of rights, but wondering whether enhanced parliamentary scrutiny of proposed laws and a statutory charter of rights could help in Australia. Continuing my work especially on indigenous rights and the rights of asylum seekers and participating in the occasional public debate on euthanasia, stem cells and abortion, I declared myself something of a fence sitter on the ACT and Victorian statutory charters. Teaching back at Georgetown, I then received the invitation to serve on this committee. By the time I got to Rome for a meeting, the Attorney-General was on the phone asking me to chair the committee, precisely because of my fence sitting propensity. Thus the photo on the Press Club website showing me next to the Dog Fence on the road from Coober Pedy to Mintabie.

Mary, Tammy, Mick and I had obviously been chosen because we are Australians with very different backgrounds and perspectives. We started with our differences, and we still have some. The government entrusted us to feed back what we heard from the Australian community. This we have tried to do. We came to the task confident that Australia is a nation that prides itself on 'the fair go' but knowing that much could be done to improve human rights-especially the human rights of people who 'fall between the cracks' in our egalitarian society. In this regard we were attentive to those who sought us out-at a community roundtable, on the online forum, on Facebook, at the public hearings or through submissions.

There was disagreement among members of the Committee about the need for and usefulness and desirability of a Human Rights Act. But, on the weight of all the views expressed, the Committee, persuaded of the need for such an Act, has recommended one which applies only to the Commonwealth and not to the States and Territories.

But our report is about much more than the debate about a Human Rights Act. More than half the recommendations relate to other matters. The clearest finding from our work is that Australians know little about their human rights-what they are, where they come from and how they are protected. They need and want education. They need and want to create a better culture of human rights in those organisations that deliver public services to the community.

With the assistance of a sensational team of writers and researchers, we presented our 500 page report to the Rudd government just two weeks ago. Last week the Government published the report which is available not only in hard copy but also on the web together with more than 6,000 submissions by persons who agreed to publication of their proposals. Some submissions run to more than a hundred pages. Also available on webcast are the full proceedings of our three days of public hearings held in Parliament House. You can also follow the detailed discussion on the Consultation's online forum. Our website had scored almost 400,000 hits even before the launch of the report by the Attorney-General last week. The search engine on the website is second to none, so you can track your inquiries within seconds. I pay tribute to our secretariat in the Attorney-General's Department who ensured these outcomes, working to a tight budget and often with inadequate staffing. Our secretariat started with five members and peaked at 13 members with assistance from 10 recent graduates. They were all women. I asked whether any men in the Attorney Generals 'did human rights', only to be told that they were more interested in corporate law. In the latter stages, there was some male input.

People with wildly divergent opinions about social, moral, political and legal questions came and had their say during our consultation. Only once did a participant abuse the audience. The respect and tolerance we show each other in the public domain is one of the great things about Australia. I doubt there are many other countries where these community roundtables could have been conducted so peacefully.

Our three days of public hearings in the Great Hall of Parliament House in Canberra featured a diverse range of Australians agitating the big questions of this National Human Rights Consultation-including whether we need an Australian Human Rights Act. Never before has a public consultation generated so much interest.

The Committee was required to report on the concerns raised and the options identified during its Consultation with members of the Australian community, who were asked three questions:

• Which human rights (including corresponding responsibilities) should be protected and promoted?
• Are these human rights currently sufficiently protected and promoted?
• How could Australia better protect and promote human rights?

The third question has often been morphed in the media into asking whether Australia should have a Human Rights Act. That is just one of the issues raised by the third question.

I will provide a thumbnail sketch of our findings from the community consultations on the three questions. I will then address the recommendation of a Human Rights Act and say a word about some of the misperceptions in the critique already offered to our report.

Which human rights (including corresponding responsibilities) should be protected and promoted?

At community roundtables participants were asked what prompted them to attend. Some civic-minded individuals simply wanted the opportunity to attend a genuine exercise in participative democracy; they wanted information just as much as they wanted to share their views. Many participants were people with grievances about government service delivery or particular government policies. Some had suffered at the hands of a government department themselves; most knew someone who had been adversely affected — a homeless person, an aged relative in care, a close family member with mental illness, or a neighbour with disabilities. Others were responding to invitations to involve themselves in campaigns that had developed as a result of the Consultation. Against the backdrop of these campaigns, the Committee heard from many people who claimed no legal or political expertise in relation to the desirability or otherwise of any particular law; they simply wanted to know that Australia would continue to play its role as a valued contributor to the international community while pragmatically dealing with problems at home.

Outside the capital cities and large urban centres the community roundtables tended to focus on local concerns, and there was limited use of 'human rights' language. People were more comfortable talking about the fair go, wanting to know what constitutes fair service delivery for small populations in far-flung places. At Mintabie in outback South Australia, a quarter of the town's population turned out, upset by the recent closure of their health clinic. At Santa Teresa in the red centre, Aboriginal residents asked me how I would feel if the government required that I place a notice banning pornography on the front door of my house. They thought that was the equivalent of the government erecting the 'Prescribed Area' sign at the entrance to their community. In Charleville, western Queensland, the local doctor described the financial hardship endured by citizens who need to travel 600km by bus to Toowoomba for routine specialist care.

The Committee learnt that economic, social and cultural rights are important to the Australian community, and the way they are protected and promoted has a big impact on the lives of many. The most basic economic and social rights — the rights to the highest attainable standard of health, to housing and to education — matter most to Australians, and they matter most because they are the rights at greatest risk, especially for vulnerable groups in the community.

The community roundtables bore out the finding of Colmar Brunton Social Research's 15 focus groups that the community regards the following rights as unconditional and not to be limited:

• the right to basic amenities — water, food, clothing and shelter
• the right to essential health care
• the right of equitable access to justice
• the right to freedom of speech
• the right to freedom of religious expression
• the right to freedom from discrimination
• the right to personal safety
• the right to education.

Many of the more detailed submissions presented to the Committee argued that all the rights detailed in the primary international instruments Australia has ratified without reservation should be protected and promoted. Most often mentioned were the International Covenant on Civil and Political Rights 1966 and the International Covenant on Economic, Social and Cultural Rights 1966, which, along with the Universal Declaration of Human Rights 1948, constitute the 'International Bill of Rights'.

Some submissions also included the International Convention on the Elimination of All Forms of Racial Discrimination 1965, the Convention on the Elimination of All Forms of Discrimination against Women 1979, the Convention against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment 1984, the Convention on the Rights of the Child 1989, and the Convention on the Rights of Persons with Disabilities 2006.

Having ratified these seven important human rights treaties, Australia has voluntarily undertaken to protect and promote the rights listed in them. This was a tension for us in answering Question 1. Many roundtable participants and submission makers spoke from their own experience highlighting those rights most under threat for them or for those in their circle. Others provided us with a more theoretical approach arguing that all Australia's international human rights obligations should be complied with.

True to what we heard from the grassroots, we have singled out three key economic and social rights for immediate enhanced attention by the Australian Human Rights Commission — the rights to health, education, and housing. We think that government departments should be attentive to the progressive realization of these rights, within the constraints of what is economically deliverable. However, in light of advice received from the Solicitor-General, we don't think the courts have a role to play in the progressive realization of these rights.

We have recommend that the Federal Government operate on the assumption that, unless it has entered a formal reservation in relation to a particular right, any right listed in the seven international human rights treaties should be protected and promoted.

Are our human rights currently sufficiently protected and promoted?

Colmar Brunton Social Research found 'only 10 per cent of people reported that they had ever had their rights infringed in any way, with another 10 per cent who reported that someone close to them had had their rights infringed'. 10 per cent is a good figure, but only the most naively patriotic would invoke it as a plea for the complacent status quo. The consultants reported that the bulk of participants in focus groups had very limited knowledge of human rights. Sixty-four per cent of survey respondents agreed that human rights in Australia are adequately protected; only seven per cent disagreed; the remaining 29 per cent were uncommitted. The Secretariat was able to assess 8671 submissions that expressed a view on the adequacy or inadequacy of the present system: of these, 2551 thought human rights were adequately protected, whereas 6120 (70 per cent) thought they were not.

There is enormous diversity in the community when it comes to understanding of and perspectives on rights protection.

How could Australia better protect and promote human rights?

The Committee commissioned The Allen Consulting Group to conduct cost-benefit analyses of a selection of options proposed during the Consultation for the better protection and promotion of human rights in Australia. The consultants developed a set of criteria against which the potential effects of various options were assessed; the report on the outcome of this assessment is presented as an Appendix to the report. Each option was evaluated against three criteria — benefits to stakeholders, implementation costs and timeliness, and risks. The options evaluated were a Human Rights Act, human rights education, a parliamentary scrutiny committee for human rights, an augmented role for the Australian Human Rights Commission, review and consolidation of anti-discrimination laws, a new National Action Plan for human rights, and maintaining current arrangements (that is, 'doing nothing').

There are three tranches of measures to be considered for further protecting and enhancing human rights. I will deal with them in ascending order of controversy and in descending order of broad community endorsement.

Education and culture

At many community roundtables participants said they didn't know what their rights were and didn't even know where to find them. When reference was made to the affirmation made by new citizens pledging loyalty to Australia and its people, 'whose rights and liberties I respect', many participants confessed they would be unable to tell the inquiring new citizen what those rights and liberties were and would not even be able to tell them where to look to find out. In the report, we note the observation of historian John Hirst 'that human rights are not enough, that if rights are to be protected there must be a community in which people care about each other's rights'. It is necessary to educate the culturally diverse Australian community about the rights all Australians are entitled to enjoy. Eighty-one per cent of people surveyed by Colmar Brunton Social Research said they would support increased human rights education for children and adults as a way of better protecting human rights in Australia.

At community roundtables there were consistent calls for better education. Of the 3914 submissions that considered specific reform options (other than or in addition to a Human Rights Act), 1197 dealt with the need for human rights education and the creation of a better human rights culture. This was the most frequent reform option raised in those submissions. While 45 per cent of respondents in the opinion survey agreed that 'people in Australia are sufficiently educated about their rights', Colmar Brunton concluded:

'There is strong support for more education and the better promotion of human rights in Australia. It was apparent that few people have any specific understanding of what rights they do have, underlining a real need as well as a perceived need for further education.'

This confirms the Committee's experience of the community roundtables.

The Committee's recommendation that a readily comprehensible list of Australian rights and responsibilities be published and translated into various community languages follows from Colmar Brunton's finding that there was 'generally more support for a document outlining rights than for a formal piece of legislation per se'. There was wide support for this idea in the focus groups, and 72 per cent of those surveyed thought it was important to have access to a document defining their rights. Even more significantly, Colmar Brunton found:

'In the devolved consultation phase with vulnerable and marginalised groups there was a very consistent desire to have rights explicitly defined so that they and others would be very clearly aware of what rights they were entitled to receive.'

Sixty-one per cent of people surveyed supported 'a non-legally binding statement of human rights principles issued by the Federal Parliament and available to all people and organisations in Australia'.

We have recommended a readily comprehensible list of Australian rights and responsibilities include commitments such as the responsibility:

• to respect the rights of others
• to support parliamentary democracy and the rule of law
• to uphold and obey the laws of Australia
• to serve on a jury when required
• to vote and to ensure to the best of our ability that our vote is informed
• to show respect for diversity and the equal worth, dignity and freedom of others
• to promote peaceful means for the resolution of conflict and just outcomes
• to acknowledge and respect the special place of our Indigenous people and acknowledge the need to redress their disadvantage
• to promote and protect the rights of the vulnerable
• to play an active role in monitoring the extent to which governments are protecting the rights of the most vulnerable
• to ensure that we are attentive to the needs of our fellow human beings and contribute according to our means.

Paul Kelly from The Australian thought our contempt for the Australian community breathtaking in our call for education of children 'so they understand the need to respect 'the dignity, culture and traditions of other people'.' I make no apology for this call. It is fanciful for Kelly to suggest that our 'report, in effect, seeks the obliteration of the Howard cultural legacy'. I know of no member of my committee who would claim knowledge of such a legacy, let alone a commitment to obliterate it. Such a task was well beyond our terms of reference. It is a figment of his patriotic imagination.

Human Rights Compliance in the Bureaucracy and in the Preparation of Legislation

The second tranche of proposals for enhancing human rights protection includes recommendations for ensuring that Commonwealth public authorities are more attentive to human rights when delivering services and for guaranteeing compliance of Commonwealth laws with Australia's voluntarily assumed human rights obligations. We recommend that the Human Rights Commission have much the same role in hearing complaints of human rights violations by Commonwealth agencies as it presently has in relation to complaints of unlawful discrimination.

Taking the lead from Senator George Brandis in his submission for the Federal Opposition, we recommend an audit of all past Commonwealth laws so that government might consider introducing amendments to Parliament to ensure human rights compliance. We also recommend that all future Commonwealth bills introduced to Parliament by the Executive be accompanied by a statement of human rights compatibility and that there be a parliamentary committee which routinely reviews bills for such compliance. These measures are fully respectful of parliamentary sovereignty. We recommend measures more thorough than the weak model of the Legislation Review Committee in New South Wales where parliament is able to receive the parliamentary committee report on human rights violations long after the legislation has been passed. We see no point in window dressing procedures which close the gate only once the horse has bolted.

A Human Rights Act?

The third tranche of recommendations relates to a Human Rights Act.

Many Australians would like to see our national government and parliament take more notice of human rights as they draft laws and make policies. Ultimately, it is for our elected politicians to decide whether they will voluntarily restrict their powers or impose criteria for law making so as to guarantee fairness for all Australians, including those with the least power and the greatest need.

Our elected leaders could adopt many of the recommendations in our report without deciding to grant judges any additional power to scrutinise the actions of public servants or to interpret laws in a manner consistent with human rights.

The majority of those attending community roundtables favoured a Human Rights Act, and 87.4 per cent of those who presented submissions to the Committee and expressed a view on the question supported such an Act — 29,153 out of 33,356. In the national telephone survey of 1200 people, 57 per cent expressed support for a Human Rights Act, 30 per cent were neutral, and only 14 per cent were opposed.

Our elected politicians could decide to take the extra step, engaging the courts as a guarantee that our politicians and the public service will be kept accountable in respecting, protecting and promoting the human rights of all Australians.

If they do choose to take that extra step, we have set out the way we think this can best be done — faithful to what we heard, respectful of the sovereignty of parliament, and true to the Australian ideals of dignity and a fair go for all. Our suggestions are confined to the Federal Government and the Federal Parliament. The states and territories will continue to make their own decisions about these matters. But we hope they will follow any good new leads given by the Federal Government and the Federal Parliament.

Part Four of our report deals with the issue of a Human Rights Act. It contains five chapters. First, it sets out previous attempts to legislate for a Human Rights Act in Australia and analyses why those attempts have failed. Second, it gives an overview of the statutory models in New Zealand, the UK, Victoria and the ACT. Third, it gives a dispassionate statement of the case for a Human Rights Act. Fourth, it gives an equally dispassionate statement of the case against a Human Rights Act. Fifth, it sets out the range of 'bells and whistles' that could be included in any Human Rights Act. This part of the report can stand alone as a useful resource for any citizen or Member of Parliament undecided about the usefulness or desirability of a Human Rights Act. The intended reader is the person who is agnostic about this question, not altogether convinced of the social worth of lawyers, wanting bang for the buck with social inclusion and protection of the vulnerable in society. I suspect few of the commentariat at Murdoch have had the chance to read this part of the report yet. I commend it to the Australian public.

Part Five of the report then contains the recommendations we have made as a committee. We have recommended a Human Rights Act. Despite sensational headlines in The Australian, I do not see any enormous problems with the model we have proposed. It would have no application to the States or the Territories. It would add two significant reforms to those in the first two tranches. Parliament would grant to judges the power to interpret Commonwealth laws consistent with human rights provided that interpretation was always consistent with the purpose of the legislation being interpreted. This power would be more restrictive than the power granted to judges in the United Kingdom. In the UK, Parliament has been happy to give judges an even stronger power of interpretation because a failed litigant there can always seek relief in Strasbourg before the European Court of Human Rights. Understandably, the English would prefer to have their own judges reach ultimate decisions on these matters, rather than leaving them to European judges. We have no such regional arrangement in Australia. Suva ain't Strasbourg!

Second, a person claiming that a Commonwealth agency had breached their human rights would be able to bring an action in court. For example, a citizen disaffected with Centrelink might claim that their right to privacy has been infringed by Centrelink. The court would be required to interpret the relevant Centrelink legislation in accordance with the Human Rights Act. If the court could so interpret the law, it might find that Centrelink was acting beyond power, infringing the right to privacy. Alternatively, the court would find that Centrelink was acting lawfully but that the interference with the right to privacy was not justified in a free and democratic society. It would then be a matter for the parliamentary committee on human rights to decide whether to review the law and recommend some amendment. Ultimately, it would be a decision for the responsible minister and the government as to whether the law should be amended.The sovereignty of parliament would be assured.

Consistent with international human rights law, we have acknowledged that economic and social rights such as the rights to health, education and housing are to be progressively realized. Nothing in our recommendations would allow a citizen or non-citizen to go to court claiming a right to health, education or housing. The progressive realization of these rights would be a matter for the Government and the Human Rights Commission in dialogue. We recommend that some civil and political rights be non-derogable and absolute. This means that these rights cannot be suspended or limited, even in times of emergency.' These rights include the right to life, precluding the death penalty; protection from slavery, torture, cruel and degrading treatment.

Some will argue that there is no prospect of these rights being infringed in Australia, so why bother to legislate for them? The facts that any infringement of these rights would be indefensible and that most Australians hold such rights as sacrosanct create a strong case, in the opinion of the Committee, for these rights being guaranteed by Commonwealth law.

If in future a Federal Parliament were to legislate to interfere with these rights — as it could in theory, considering that not even these rights are included in the Constitution and put beyond the reach of parliament — the public would be aware that the rights were being infringed. There could be no argument that the limitation of these rights was reasonably justified in a democratic society.

Most civil and political rights can be limited in the public interest or for the common good or to accommodate the conflicting rights of others. Nowadays the limit on such rights is usually determined by inquiring what is demonstrably justified in a free and democratic society. This would be Parliament's call. Under the dialogue model we have proposed, courts could express a contrary view. But ultimately it would always be Parliament's call. This makes it a very different situation from the US where under a constitutional model judges have the final say.

Some politicians have been suggesting that they or their colleagues would be too timid to express a view contrary to the judges and thus the judges in effect would have the last word on what limits on rights are demonstrably justified in a free and democratic society. Such timidity is not my experience of Australian politicians. Afterall if the contest is about what is justified in a free and democratic society, who is better placed than an elected politician to claim that they know the country's democratic pulse on the legitimate limit on any right?

To elaborate a little more on our model (which is similar to the one adopted in Victoria and the ACT), let me respond to two specific criticisms offered by Senator George Brandis SC. On ABC Radio this week, the Shadow Attorney General referred to one of the derogable rights we list: the right to freedom from forced work. He said:

'[T]hat sounds fair enough, but let us say Australia were at war. Now, in three of the wars that Australia has fought in — the First World War, the Second World War and the Vietnam War — the government of the day introduced military conscription. Now, if Australia were at war once again and the government of the day wanted to introduce military conscription, a person who objected to that might say, well, this is a violation of the prohibition against forced labour. So the decision about whether or not there should be military conscription in wartime would be a decision no longer made by the elected government, no longer made by the Parliament, but made by unelected judges.'

With all respect to the learned senior Counsel, the decision would not rest with unelected judges. I would be horrified if it did. Parliament would pass a law authorizing conscription. A disaffected citizen might challenge the law in the courts. The court would be required to interpret the conscription law consistent with its purpose. The Human Rights Act would provide no basis for the court to find that the law was invalid. The court might venture to suggest that the law interferes with the right in an unwarranted way. We are not dealing with a US court that could strike down the law. The court would be most likely to find that the interference with the right to freedom from forced labour was demonstrably justified in a free and democratic society. There is just no issue here with threatening the sovereignty of parliament. If a judge were to say the law was unwarranted, though valid, all the politicians need to do is say, 'We make the laws; we decide when conscription is needed; we wear the rub at election time; the judge is talking through his wig.' The judges would propose no threat to conscription. The court process would however require the government to explain rationally the need for restriction on the right to freedom from forced labour.

Senator Brandis gave one more example:

'Another of the rights that Father Brennan recommends should be included in the Bill of Rights is the right to marry and found a family. Now, these rights obviously have to be enjoyed equally by everyone in Australia. We've been having a debate in this country for a few years now about gay marriage. Wherever you stand on the issue of gay marriage — whether you take a liberal view that there's nothing wrong with it, or a more conservative view that marriage is a relationship that can only really exist between a man and a woman — that is a decision that should be made by people whom the public elect, not by unelected judges.'

I agree completely with Senator Brandis. Under the model of Human Rights Act we have proposed that decision would still be made by the people whom the public elect. A gay or lesbian couple disaffected with the Commonwealth marriage law might challenge it in court. But the court would be required to find that a law restricting marriage to a man and a woman was valid. The Human Rights Act would provide no basis for the court to find that the law was invalid. The court might offer an observation about whether that 'restriction' on the right to marry and found a family is justified in a free and democratic society. Once again it would be a matter for the parliamentary committee on human rights to decide whether to require the Attorney-General to provide an explanation of the existing law. The law could be changed only by the elected parliament. This is the virtue of the so called 'dialogue model'.

Conclusion

Even if all our recommendations, including the adoption of a Human Rights Act, were implemented tomorrow, there would still be vulnerable Australians missing out, especially on the essential economic and social rights of greatest concern to the community — health, housing and education. Responsibility for meeting these needs cannot rest solely with government and the vulnerable themselves. We need to take responsibility for each other.

A free and confident Australia has always been on the path to better human rights protection. At times our leaders — such as HV Evatt and Jessie Street — have taken great strides on this path, showing the world a way forward. The Australian community's fabulous response to this Consultation suggests that the time is right for our elected leaders to take new steps to protect and promote human rights. Each step for human rights can take us further on the path to dignity and fairness.

My committee hopes this report is a real stimulus to enhanced human rights protection in Australia today. We are delighted that the Government has decided to publish it so promptly and to respond in detail at a later date. Respecting the sovereignty of Parliament and discharging the public trust given us, we the committee have entrusted this report to the Government and we now commend it to all our elected representatives in the Parliament. Let the next stage of the conversation and national commitment to human rights begin. It is time for me to relinquish my mobile phone back to the Attorney General's department. Tomorrow I return to Rome for another meeting contemplating how best to educate for human rights throughout the world. I go, happy to have had the opportunity to get off at least one fence. I'm sure there will be more splinters to trouble me in the future. Thank you.