Toothless, Trojan or true to Trinitarian anthropology

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Thank you for the opportunity to share some reflections on the National Human Rights Consultation. It is very open minded, and perhaps even a little bold, of the organisers of your conference to invite me to speak, given the strong skepticism I know to exist in this group about a federal Charter of rights in any form. Whereas this evening's Chairman, Professor Nicholas Tonti-Filippini, has described a Charter in the form recommended by my committee 'a toothless tiger', Cardinal Pell has described our recommendations as a Trojan horse which 'will be used against religious schools, hospitals and charities by other people who don't like religious freedom and think it shouldn't be a human right'. Doubting that the Australian public is much interested in a toothless tiger or a Trojan horse, I am happy to address you on our proposals which have been firmly grounded in what we heard from the Australian community. I trust upon reconsideration, you might be motivated to read our report and recommendations for a federal Charter which is neither toothless nor Trojan.

The Consultation was announced by the Rudd Government on Human Rights Day, 10 December 2008. The four member committee e presented its 500 page report to government on 30 September 2009. The government published the report almost immediately, allowing further public comment. The government has not yet indicated when it will provide its own response to the report.

We held 66 community roundtables at 52 locations within the Australian jurisdiction from Christmas Island to Palm Island, from Thursday Island to Tasmania. 6000 Australians attended our community roundtables and the 35000 who made submissions. Critics of our findings and recommendations have claimed that we were attentive only to the elites in Australian society. We were 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 was a rare privilege for me. This was only the second time in my life I 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, Too Much Order with Too Little Law, 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 in late 2008, I then received the invitation to serve on the 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 one of my favourite photos on my Facebook site for the consultation featured me next to the Dog Fence on the road from Coober Pedy to Mintabie.

Mary Kostakidis, Tammy Williams, Mick Palmer and I had obviously been chosen because we are Australians with very different backgrounds and perspectives. We started with our differences, and we still had some when we finished. The government entrusted us to feed back what we heard from the Australian community. This we 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, 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.

Our report 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. The search engine on the website is second to none, so you can track your inquiries within seconds. Our secretariat started with five members and peaked at 13 members with assistance from ten 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.

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 was often 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 address the recommendation of a Human Rights Act and say a word about some of the misperceptions in the critique offered to our report. I will then make some observations about church involvement in the consultation and a couple of the less sustainable church arguments put against our recommendations.

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 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 did not think the courts could have a role to play in the progressive realization of these rights.

We recommended 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 7 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 noted 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 confirmed 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 recommended a readily comprehensible list of Australian rights and responsibilities.

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 commentators like 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 Kelly's 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 recommended 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 recommended an audit of all past Commonwealth laws so that government might consider introducing amendments to Parliament to ensure human rights compliance. We also recommended 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 recommended 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 saw 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 read this part of the report yet. I had cause to write to Newsweekly after publication of the report, having good grounds suspecting that their correspondent read only the chapter on the case for a human rights act, overlooking the chapter on the case against a human rights act:

Peter Westmore describes how in his opinion 'the national human rights consultation was hijacked' (Newsweekly, 31 October 2009, p.5). He has obviously not read the report. Could I provide just one correction which will be obvious to anyone regardless of their political views on a human rights act. Mr Westmore highlights interesting anomalies in our report including: 'The web site contained a photograph of former Labor Minister Susan Ryan seated beside a man at the committee's hearings. The caption on the photo was, 'The Hon Susan Ryan AO puts the case for an Australian Human Rights Act'. What was not mentioned is that that man shown next to Susan Ryan is former NSW Labor Premier, Bob Carr, who at the committee hearing and elsewhere has strongly opposed a human rights act.' Newsweekly reproduces the photo at p.265 of our report in the chapter entitled 'The Case For A Human Rights Act'. I can only presume that Mr Westmore failed to read the next chapter entitled 'The Case against a Human Rights Act'. At p. 281, there then appears another photo of Carr and Ryan, this time with Carr speaking. The caption reads, 'The Hon Bob Carr puts the case against an Australian Human Rights Act'. An anomaly, or just even handed treatment of competing views? I commend the entire report to your readers.

Part Five of the report then contains the recommendations we made as a committee. We 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 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 recommended 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 when our report was released. On ABC Radio, 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'.

Church involvement in the National Human Rights Consultation

Over the years, I have often been involved in public advocacy of policy positions consistent with Catholic social teaching and with the Church's moral tradition. I make no claim that all bishops have agreed with my own analysis as to how Church teaching is to be applied when making law or public policy, rather than how it is to be applied when simply enunciating what is moral or preferable behaviour for the individual wanting to live a good life consistent with Church teaching. In light of Professor Rowland's presentation yesterday on 'The implications of different natural law theories for engaging society', I would assert that a legal sanction or imperative explicable only by a Trinitarian anthropology ought be imposed only on those persons who adopt a Trinitarian anthropology, and that to impose such a sanction or imperative on others would be a violation of principles based on a Trinitarian anthropology.

This is the first time that I have been on the other side of a public inquiry process, trying to respond to the various Church voices putting sometimes contrary views on an issue of law or public policy. For example, what is one to make of the varying formal positions on a Human Rights Act put forward by the governing bodies of the three major churches? Let's consider the evidence, bearing in mind that Catholics are 26 per cent of the population, Anglicans 21 per cent, and Uniting Church 7 per cent.

The Australian Catholic Bishops Conference submitted:

'In considering the question raised by the terms of reference of the National Human Rights Consultation, it is noted that much discussion has been about whether or not there should be a Charter of Rights. On that particular issue, the ACBC does not take a particular stand at this stage.'

In their submission, the Australian Catholic Bishops Conference restated: 'The Australian Catholic Bishops Conference does not have a position as to whether or not there should be a Charter of Rights.'

The Anglican General Synod submitted:

'We support the enactment of human rights legislation because this has the potential to have a beneficial effect on government policy and the legislation and administration which give effect to that policy. Legislators and administrators will be compelled by such legislation to consider the impact of their decisions on all Australians, especially the most vulnerable. Further, the existence of human rights legislation could encourage greater understanding of human rights in the community.'

The Uniting Church National Assembly submitted:

'The Uniting Church believes that a Human Rights Act, operating within Australia's system of open and democratic government, will provide greater protection for fundamental rights and freedoms, promote dignity, address disadvantage and exclusion, and help to create a 'human rights culture' in Australia. Furthermore, it will serve to promote Australia's commitment to human rights in the Asia-Pacific and globally, and formalise the current Government's commitment to the United Nations. by those putting it into effect.'

As if that is not confusing enough, consider that in contradistinction to the submission of the Australian Catholic Bishops Conference, the Archdiocese of Sydney (Dr Michael Casey) submitted:

'There are initiatives which could be taken to better protect and promote human rights in Australia, but there are serious reasons for doubting that a statutory charter of rights is the best way of doing this.'

This submission followed upon Cardinal Pell's address to the Brisbane Institute the previous year when he stated his opposition to a charter of rights in any form. He told the Brisbane Institute:

'The suspicion of majority — that is, parliamentary — rule, the preference for judicial, as opposed to political, determination of fundamental questions, the unacceptable transfer of responsibility from the parliament to the courts, and the unspoken assumptions which inform not only these tendencies but the particular social and political agenda which a bill of rights is intended to implement, are some of critical problems with proposals for a bill or charter of rights. These problem are compounded by confusion over the foundations of human rights, freedom and truth.'

Moving beyond the neutral position of the Australian Catholic Bishops Conference, the Archdioceses of Sydney and Melbourne co-operated in activities with the Australian Christian Lobby before and after the release of our report. The Lobby was opposed to a Human Rights Act in any form. For me and my committee members, it was difficult to get a handle on just who the Lobby represents. Once church leaders join forces with the Lobby, it is then difficult to know how to assess the earlier formal statements of the church leaders which may not be fully consistent with the Lobby's implacable opposition to a measure such as a Human Rights Act. During the course of our inquiry, the Lobby's Victorian State Director Rob Ward who is here with us at the conference explained the Lobby's profile to the Victorian Parliament in these terms:

'The Australian Christian Lobby occupies a somewhat different space from some of the other church and church-related groups ... We are not a church, we are not a peak body seeking to represent schools or welfare agencies, we are certainly not a political party and neither are we a denomination. The Australian Christian Lobby has a vision, in that we seek to see Christian principles and ethics accepted and influencing the way we are governed, the way we do business and the way we relate to each other as a community.

'We are, in the most commonly accepted term, a parachurch group, with a goal of speaking particularly in the political and public policy areas at both state and federal levels ... Parachurch organisations are, by definition, Christian faith-based organisations which work outside and across denominational boundaries. As such, the Australian Christian Lobby is in a unique position, I believe, to reflect to the committee today the depth and breadth of concern felt across the wider Christian community over some of the proposals contained in the Options Paper. Here in Victoria my role with the Australian Christian Lobby is as state director. As such, I caucus quite widely and am engaged with a number of different groups across the Christian community, ranging from Catholic to Pentecostal, to Baptist, to Anglican — quite broadly.'

Given the diversity of opinion expressed by the Australian Catholic Bishops Conference and the Archdiocese of Sydney, and given the ambiguous role and relationship between the Australian Christian Lobby and some church leaders, it became too complex a task to try and represent in the report the viewpoint of the various churches on a Human Rights Act. Thus we omitted all reference to same. I daresay this will become a common response by public inquiries which doubt the public's interest in investigating the complex arrangements now in place for church leaders to express views under various guises.

Chapter 13 of our report sets out the main arguments against a federal Charter of rights. I had wanted to quote Sir James Gobbo's submission to us in that chapter. It was only yesterday that I learnt from him that he had lifted the confidential embargo on his submission. We knew that the Victorian churches had concerns about religious vilification laws, abortion law reform and exemptions from discrimination laws when making employment decisions. We dealt with those three issues in Chapter 2 of the report (see Appendix) and concluded:

'Despite the strong concerns religious groups expressed in relation to these three matters, it is arguable that the Victorian charter did not give rise to any of these problems, uncertainties or disputes for religious Victorians. Faithful application of the charter might even help protect the right to freedom of thought, conscience, religion and belief, which is provided for in the charter.'

Following the release of our report, Cardinal George Pell repeated his strong opposition to Human Rights Act in any form. Since April 2008 (long before the commencement of our inquiry) he had expressed a number of grounds for opposing an Act, but this evening I would like to focus on just one of his statements for the purpose of reflecting on future church involvement in contested political and moral issues. He said:

'I fear a charter could be used or abused to limit all sorts of freedom, and religious freedom. Already in Victoria legislation is attempting to coerce prolife doctors to co-operate in abortions. However that government will answer for this in the next and subsequent elections.'

As many members of the Australian Association of Catholic Bioethicists will be aware, I argued strongly at the time of the abortion law reform in Victoria, that the right application of the Victorian Charter to that law would have resulted in the withdrawal of the provision attempting to coerce prolife doctors to co-operate in abortions because of the impossibility of providing a coherent statement of compatibility. I disagree with Nicholas Tonti Filippini's observation about a Charter requirement for the provision of such a statement of compatibility: 'Basically, such legislation is a toothless tiger.' 6 If the Parliament had insisted on the provision of a statement of compatibility for that bill (as it should have), the compulsory referral clause for conscientiously objecting doctors would undoubtedly have been omitted because no coherent statement of compatibility could be made. If in doubt about that, consider that no one including Liberty Victoria has been able to provide one, then or since.

Obviously there is room in the Church not just for disagreement about the application of the Victorian Charter but also about the electoral repercussions of measures such as abortion law reform. That reform was an Act of the Victorian parliament which did not split on party lines. My own political opinion, for what little it may be worth, is that the Brumby government will not answer for the abortion law reform 'in the next and subsequent elections'. Where will that then leave church leaders who put their faith in parliaments unconstrained by charters of rights and in an electorate increasingly secularized and indifferent to religious moral pleas?

Some Church leaders, Cardinal Pell amongst them, think that Church positions on contested moral issues (such as abortion) have a better chance of being reflected and maintained in law and policy if parliaments are not constrained by a human rights Act. Judging by recent debates on abortion, RU486, and stem cells, I would beg to differ. Gone are the days when church leaders behind closed doors can do deals with political leaders about laws and policies.

I understand the concerns of those church leaders who fear that the secularising effect of the soft left 'liberal' agenda will be accelerated by the passage of a Human Rights Act. I think those concerns are misplaced, in that a Human Rights Act can be designed to ensure that parliamentarians have due regard for freedom of religion and conscience, including the conscience of the religious citizen who is out of sympathy with any prevailing soft left liberal agenda. In my opinion (and I admit to my own self-interest in defending the comprehensiveness and even handedness of my committee's report) much of the church criticism of the recommendations of the National Human Rights Consultation report overlooks three vital considerations:

1. We decided not to buy into the ongoing contemporary dispute about the desirability of an Equality Act over against a harmonisation of existing, diverse discrimination laws. In our report, we outlined the pros and cons of both sides of that argument. Thus we did not think it appropriate to include a general non-discrimination right in a Human Rights Act (which would amount to a de-facto one clause Equality Act within a Human Rights Act). The absence of such a right made the recommendation of a discrete cause of action for breach of a specified right by a Commonwealth public authority all the more tenable. Thus the concern of Victorian churches about exemptions from discrimination laws is irrelevant to any consideration of a federal Human Rights Act in the terms in which we proposed it. Cardinal Pell seems to take no cognisance of this point in his criticism of our proposed federal charter when he says, 'There is no doubt that if Australia gets a charter of rights, upfront or by stealth, it will be used against religious schools, hospitals and charities by other people who don't like religious freedom and think it shouldn't be a human right. The target will be the protection in anti-discrimination laws that allow religious schools to exercise a preference in employment for people who share their faith.'. That is an issue for resolution when it comes to determining how best to revise federal discrimination laws — whether there should be an Equality Act or better harmonisation of existing discrimination laws — an issue on which my committee expressed no view.

2. We insisted that there should be a distinction between derogable and non-derogable rights including as a non-derogable right: 'Freedom from coercion or restraint in relation to religion and belief. No person will be subject to coercion that would impair his or her freedom to have or to adopt a religion or belief of his or her choice.' There would also be the derogable 'right to freedom of thought, conscience and belief' which '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.'

It is this provision which would have ruled out the Victorian law requiring compulsory referral by a doctor with a conscientious objection to performing an abortion in a particular case (say at 32 weeks).

3. We proposed a list of responsibilities, which though not legislated, would be an integral part of the public education process on human rights. This list included:

  • 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.

Having invoked the arguments about the Victorian abortion law and exemptions from discrimination laws, Cardinal Pell went on to claim, 'The push for a charter of rights should be seen in a wider context that includes the attempt by the ACT government to force the sale of Calvary public hospital in Canberra, which is run by the Little Company of Mary.' With respect, I think the case for or against a federal Charter of rights should be made not by introducing red herrings such as the proposed voluntary sale of a hospital by a Catholic provider to a territory government, and which would result in the ACT still having higher percentage of acute beds in Catholic hospitals than is the case in any other diocese. If that sale proceeds, it will be in no way related to the ACT Human Rights Act. Catholic health providers are neither more nor less advantaged in Victoria and the ACT because those jurisdictions have a human rights Act. Even those church people concerned by the secularizing tendencies of governments in the Australian democracy need to concede that the absence of a human rights Act does nothing to arrest those secularizing tendencies. It just leaves members of parliament free to respond to community pressure (including its secularizing demands) without the added constraint of ensuring compliance with the rights listed in a human rights Act including the right to freedom of conscience and of religious belief.

Within our broad church, there is plenty of room for a diversity of views. Through my participation in this inquiry I have become more convinced that the Church will be in better standing in the community if it consistently espouses the need for elected politicians to respect the human rights of all persons, without opposing proposals for human rights Acts on the basis that such laws might allow unelected judges to interfere with the privileges which church leaders have extracted from elected politicians. I also think the church should take a more consistent position on the need to protect and respect the right and duty of a person to form and inform their conscience, and to that conscience be true. I applaud the recent statement of Bishop Christopher Prowse to the Victorian Parliament's Scrutiny of Acts and Regulations Committee:9

The denial of a person's right to hold and exercise their own conscience and beliefs is an effective denial of their own personhood and individuality.

A human rights Act which constrained popular politicians from interfering with that right even when exercised by religious people could be a cause for good, not a toothless tiger and not a Trojan horse to be feared.

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.

Hopefully the National Human Rights Consultation report will be a real and continuing stimulus to enhanced human rights protection in Australia, providing the courtesy and respect for others which any Trinitarian anthropology would expect of us.

Appendix

NHRC Report pp.49–50

Religious concerns about the Victorian charter

Many Victorians with church affiliations were worried about three distinct aspects of the state's Charter of Human Rights and Responsibilities Act 2006.

First, it was suggested that the outcome of proceedings launched in 2005 under the Racial and Religious Tolerance Act 2001 (Vic) by the Islamic Council of Victoria against Catch the Fire Ministries for alleged religious vilification of Muslims could have impinged on freedom of religious speech. Had the Victorian charter been in effect at that time, it could have provided additional protection for religious freedom of expression.

Second, concern was expressed about the parliamentary review of exemptions to the Equal Opportunity Act 1995 (Vic), including exemptions for religious schools. This is a timely re-evaluation, regardless of the existence of the charter.10 The exemptions have been a source of concern for many members of faith communities. At the Committee's public hearings Bishop Robert Forsyth said the exercise of the right to freedom of religion, conscience and belief by faith communities conducting educational and social works:

'... will inevitably involve being discriminating as to who is employed in such institutions and ministries so as to maintain their character, ethos and integrity. This in principle is not controversial even though it does mean that religious bodies appear to be involved in what otherwise are exceptions to the general obligation to respect the right not to be discriminated against. This is why there are exemption provisions in anti-discrimination laws for religious bodies. These exemptions are usually framed with the intention of allowing what is genuinely required for the exercise of the right of the freedom of religion while excluding unnecessary discrimination by the use of such categories as 'the inherent requirements of the job' and 'made in good faith to avoid injury to the religious susceptibilities of the adherents'.'

Third, the Committee heard that the Victorian charter's usual scrutiny mechanisms, including a compatibility statement, were not applied to the Abortion Law Reform Act 2008 (Vic). The Act provided for abortion on demand, but the Victorian Parliament went one step further. The law requires that any medical practitioner with a conscientious objection to abortion refer the patient to another medical practitioner known not to have the same objection. The referral clause was not supported by the Australian Medical Association, whose code of ethics imposes no such obligation to refer.

At the time of the parliamentary debate, some portrayed the objections to the law as simply emanating from a group of zealots. The objectors could see, however, that such a law would needlessly violate the consciences of some medical practitioners. The Victorian Parliament's Scrutiny of Acts and Regulations Committee raised questions about the new law, but parliament failed to act, the government declined to provide a statement of compatibility, and some lawyers said no such scrutiny or statement of compatibility was necessary. The Victorian Equal Opportunity & Human Rights Commission stated, '[The committee's] interpretation of the Charter is preferable and ... the bill should have been accompanied by a statement of compatibility'.

Since the Victorian debate on the compulsory referral clause the Australian Medical Council has been consulting on a national code of ethics for all Australian doctors. It has reported, 'There was a request for clear guidance in relation to conscientious objection'.

The new code provides such guidance:

'Good medical practice involves: ... [2.4.6] Being aware of your right to not provide or directly participate in treatments to which you conscientiously object, informing your patients and, if relevant, colleagues, of your objection, and not using your objection to impede access to treatments that are legal. [2.4.7] Not allowing your moral or religious views to deny patients access to medical care, recognizing that you are free to decline to personally provide or participate in that care.'

Despite the strong concerns religious groups expressed in relation to these three matters, it is arguable that the Victorian charter did not give rise to any of these problems, uncertainties or disputes for religious Victorians. Faithful application of the charter might even help protect the right to freedom of thought, conscience, religion and belief, which is provided for in the charter.

Conclusion

A majority of the thousands who responded to the Consultation sought to draw the Committee's attention to the plight of society's most vulnerable. Most of the participants felt that the protections afforded by majoritarian rule do not necessarily adequately take account of those who 'fall through the cracks'. The written submissions and the voices of participants sought to harness our collective imagination as a civilised nation, to imagine ourselves in the shoes of others, and to respond with the compassion that is ultimately the measure of our humanity.

Some of the most challenging questions and problems-whether it is the wellbeing of remote Indigenous communities, the security of our national borders, or protection of the community from terrorism-require decision makers to strike a balance between the human rights of the individual and the welfare of society. Some of the calls for law reform and policy change relate to rights such as the right to die, the right to life and the right to religious freedom being accommodated with the competing rights and interests of others. Much of the disagreement in the Consultation focused on three questions:

When ought the State be limited in exercising power?

When ought the State limit the choices of individuals?

When the State does act, should the balance be struck by parliament or the courts?

A Human Rights Act might help both parliaments and courts in resolving conflicting claims; it might also help communities make decisions on contentious social and moral questions. There is always a risk that groups unhappy with legislative or policy outcomes will claim that a Human Rights Act is applied selectively or ideologically.


Frank BrennanFr Frank Brennan SJ is professor of law at the Australian Catholic University's Public Policy Institute. This text is taken from his address to the Australian Association of Catholic Bioethicists at the 2010 Bioethics Colloquium, 26 January 2010. 

 

 

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Steve Astill | 28 January 2010


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