Human rights acts after Brexit

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Queensland's Labor Government is conducting a parliamentary inquiry into the desirability of a human rights act. Such inquiries are routine fare for newly elected Labor governments in Australia.

Diverse AustraliansVictoria and the Australian Capital Territory have enacted comprehensive human rights legislation which provides a working model for those other Australian jurisdictions tempted to give it a go. The ALP right faction, like their Liberal and National Party colleagues, have long been suspicious about human rights legislation. This has always been the case in New South Wales.

I was privileged to chair the National Human Rights Consultation Committee for the Rudd government in 2009. Two of the strongest opponents of a federal human rights act were Bob Carr, who had served a record term as New South Wales Labor premier, and John Hatzistergos, a retired federal prosecutor who had come into the New South Wales parliament when Carr was premier. He then became Attorney-General under Carr's successor, Morris Iemma.

In April 2008, long before the federal Labor government had asked me to chair their inquiry, I attended a spirited address by Hatzistergos who was feeling the heat from some of his Labor colleagues, who were urging him to consider a human rights act along the lines of the Victorian Charter of Human Rights and Responsibilities Act.

Hatzistergos was having none of it. He thought the Victorian charter was an expensive, trendy piece of academic window dressing. He told his Sydney Institute audience that if the proponents of the Victorian Charter were correct, you would expect to see a strong flow of traffic down the Hume Highway with people migrating from Sydney to Melbourne in pursuit of the Australian human rights paradise.

I was so bold as to suggest that if his doom and gloom about a human rights act were correct, you would expect to find a crushing flow of traffic in the opposite direction. Given that there was no such flow in either direction, I remained an agnostic fence-sitter about the benefits of a human rights act.

During the National Human Rights Consultation, a sizeable majority of those who put in submissions and those who attended community consultations were strongly in favour of a human rights act. There was also moderate support within the focus groups and in the anonymous telephone polling we commissioned. In the end, my committee came out in support of a human rights act.

The most compelling argument for me was a fairly technical legal one. I could see that all jurisdictions equivalent to Australia (such as Canada, New Zealand and the United Kingdom) now had a human rights act of some description.

 

"Without the court oversight which would come with a human rights act, these executive and parliamentary reforms have been piecemeal. Often the parliamentary committee does not report on controversial legislation until it has been passed."

  

When novel issues such as stronger anti-terrorism laws arose for parliaments and courts to consider, the ultimate courts of appeal in other countries would need to consider the application of their human rights act. Australia would be left judicially isolated with the Australian High Court having to invent the jurisprudence for itself without the cross-fertilisation of ideas from other ultimate courts.

Over time, I thought this judicial isolation would have a deleterious effect, and ultimately, our politicians would see that the absence of a bill of rights was providing the High Court with the licence and even the duty to develop the jurisprudence without overriding guidance from the parliament.

The Rudd government decided not to pursue a human rights act. But it did proceed with our lesser recommendations which had enjoyed even stronger support from the public generally. These reforms won bipartisan support in the parliament and are still in place. As Shadow Attorney-General, George Brandis QC went so far as to call the reforms 'the most important piece of human rights legislation in a quarter of a century'. The government claimed: 'The measures in this bill will deliver improved policies and laws in the future by encouraging early and ongoing consideration of human rights issues in the policy and law-making process and informing parliamentary debate on human rights issues.'

Now at the federal level, there is a Parliamentary Joint Committee on Human Rights which is charged with scrutinising legislation for compliance with the major international human rights instruments to which Australia is a signatory. Also when a minister introduces a bill to parliament, there is a requirement for the tabling of a statement of compatibility with international human rights instruments.

Without the court oversight which would come with a human rights act, these executive and parliamentary reforms have been piecemeal. Often the parliamentary committee does not report on controversial legislation until it has been passed, and the statement of compatibility will often be rather perfunctory. For example, in its most recent report to parliament, the joint committee has commented on the government regulations relating to the safe haven enterprise visas (SHEVs) granted to some asylum seekers. Having received repeated submissions from the relevant minister, the committee concluded:

 

The introduction of SHEVs engages and limits the right to freedom of movement for SHEV holders; and the minister has not provided sufficient justification so as to enable a conclusion that the regulation is compatible with this right. The committee therefore recommends that, in order for the measure to be compatible with the right to freedom of movement, consideration be given to amending the SHEV regime such that the restrictions on travel for SHEV holders are removed.

 

No change has been made to the terms of a safe haven enterprise visa. The parliamentary committee has ruled in a non-partisan fashion that the visa breaches human rights. But there is no legal recourse and no political will for compliance.

Though I be an optimist and an incrementalist, I want to sound one other strong warning note about human rights legislation. The Victorian Charter is much stronger than the Commonwealth parliamentary scrutiny provisions, in part because it grants the Victorian Supreme Court jurisdiction to oversee legislation and to interpret it consistent with human rights, and if need be, to issue a statement of incompatibility. The Victorians pride themselves on leading the pack inducing a strong human rights culture in state departments and institutions.

But there are times when the culture looks very thin and when the rhetoric of human rights is used as a foil for major systemic failures. There was the graphic instance on ABC 7.30 last week when Yvonne Berry, a retired police officer who ended up being stripped and viciously assaulted in the Ballarat police cells, went public about her gross treatment at the hands of her erstwhile colleagues. The unforgivable police conduct was on national display. What struck me was the police response being couched in the language of human rights. This was how Tony de Ridder, Superintendent for Victoria Police, explained it:

 

I was personally mortified. I thought that on face value there were clear breaches of human rights and that assaults had occurred and I also thought that the behaviour of the members was inconsistent with our training and the way that we ask our people to behave. We are looking to change our culture totally so that human rights is something that is embedded in every element of what we do.

 

There are times when the rhetoric of human rights is just that: words which are not backed with any real sanction or corrective. Yes there were human rights breaches. This woman was viciously assaulted, stripped and demeaned by a group of police officers. There was no regard for her human dignity. Those police officers have all had years of human rights training and enculturation. But it hasn't taken hold.

Even prior to Brexit, the Conservatives in British politics were wanting to replace the UK Human Rights Act with weaker legislation. They have been worried about what they perceive to be a loss of sovereignty because UK courts are required to interpret a statute which is modelled on the European Convention on Human Rights, and because the UK courts are required to take into account the jurisprudence on human rights being developed by the European Court of Human Rights in Strasbourg. But even the British Conservatives remain committed to some form of UK Human Rights Act. They say they will put the text of the European Convention into primary legislation, thereby clarifying the Convention rights and reflecting a proper balance between rights and responsibilities. The Tories say:

 

There is nothing wrong with that original document, which contains a sensible mix of checks and balances alongside the rights it sets out, and is a laudable statement of the principles for a modern democratic nation. We will not introduce new basic rights through this reform; our aim is to restore common sense, and to tackle the misuse of the rights contained in the Convention.

 

So, I commend the Queensland parliament for undertaking this present inquiry, and I sound a cautious note of optimism about the very modest gains which might be made by the enactment of a human rights act. I don't think it would change Queensland all that much, and I doubt that the Pacific Highway will be clogged with traffic in either direction on the Pacific Highway whatever is decided. Equally, I have no doubt that, in another generation, every Australian jurisdiction will have a human rights act of some sort because human rights is the modern international currency of personal liberty and personal dignity in the face of encroaching state power. Australia is an island but we're not that isolated; and there are limits to Australian exceptionalism.

 


Frank BrennanThis is an extract of Frank Brennan's 21st anniversary address to the Moreton Bay Regional Community Legal Service. Listen to the full address here.

Further reading: Frank Brennan's seven warnings for Queensland as it considers a human rights act.

Topic tags: Frank Brennan, Brexit, human rights

 

 

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Existing comments

I still have reservations about a human rights act reflecting a proper balance between rights and responsibilities and also because of the flaws evident in the US which has a Bill of Rights. Further, I am wondering what the basis of an interpretation of Human rights is – the UN charter? As there are others around including the Christian Lobby’s Human Rights Law Alliance. I guess what I’m getting at is how we perceive what it is to be human affects what we consider rights to be which don’t exist in a vacuum as they can be limited by how they impinge on each other as in the freedom to speak is limited by Article 12 re not being subjected to attacks on one’s honour. Although, would Article 9 re abitrary arrest, detention or exile help with the freeing/resettling of asylum seekers? Then there’s Article 16.1 Men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to found a family. And 16.3 The family is the natural and fundamental group unit of society and is entitled to protection by society and the State which are not being mentioned elsewhere in our public discourse as they are inconvenient or controversial.
Gordana Martinovich | 28 October 2016


On the other hand I can see how ‘human rights is the modern international currency of personal liberty and personal dignity in the face of encroaching state power’ when we consider various regimes in existence and how it might be possible to discuss justice, equity before the law independent of race, religion, ethnicity, economic circumstances and freedom of religion (various minorities around the world being persecuted at present) and protecting against any tendencies of our own regarding the freedom to protest or on environmental grounds to litigate against corporations.
Gordana Martinovich | 28 October 2016


The three essential qualities for a human rights advocate are: optimism (much better than pessimism), patients (people who need that little extra bit of assistance) and, last but not least, good quality stationary (as in a car collided with a stationary vehicle). I would agree that Queensland would not change all that much - beautiful one day, perfect the next.
Pam | 28 October 2016


The primary purpose of a Human Rights Act or 'Bill of Rights' should be to protect the citizen from the abuse of executive and parliamentary power. The most important protection to secure is freedom from detention without trial by executive fiat. This freedom has been progressively whittled away by successive governments over recent years. For the moment, they have been targeting conspicuous 'others': 'terrorists', refugees, asylum-seekers, sex offenders, brutal killers, etc, As these sorts of laws become ' normalised' we will see their scope progressively extended to other groups and other rights. Big brother is not that far away.
Ginger Meggs | 01 November 2016


We Australian are so far behind in so much that matters. Other countries have Human Rights legislation place and are now also giving rights to whole ecological systems. For example, New Zealand has a Human Rights Act and recently entered in the process of granting personhood rights to the Te Urewera River. This recognises the river as an essential part of the land and also recognises Maori understanding that the river has its own authority. Here we are still doing our best to stop anyone assuming protection under human rights, to obstruct indigenous people enacting their traditional care of land and to abandon the land in general to the mighty power of the dollar via the mining industries. Poor fellas us . . .
Janet | 02 November 2016


Given its head, Fr Frank, would not a human rights act eventually threaten the rule of law or alternatively reduce the law to the status of servant rather than upholder and protector of humanity. I reckon we need a Consultation Committee on Human Responsibilities first something which seems to be an anathema to the current Labor Party. Human rights might serve nothing other than human self, the signature of socialism in the modern world.
john frawley | 02 November 2016


Thanks, Frank. I'm not a lawyer, so would you kindly explain why can't a Federal (or Commonwealth) Human Rights Act, if there is such a thing, be employed to contest the Government's latest plan to prevent asylum seekers on Nauru and Manus Island (and presumably all others who manage to make it onshore in future) from being prohibited from obtaining a visa to enter Australia for the rest of their human or earthly lives? Is it that I have missed that such human rights were abrogated by the right of the Commonwealth parliament to suspend any such rights? Sorry for having not paid sufficient attention while attending my Civics 101 lectures. ;)
Michael Furtado | 02 November 2016


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