Human rights framework only a start


Robert McLellandThe Rudd Government's Human Rights Framework announced this week by Attorney General Robert McClelland (pictured) is a welcome though incomplete addition to protection of human rights in Australia.

The key elements including legislation setting up a Parliamentary Joint Committee on Human Rights, funds for human rights education, and a progressive audit of existing legislation including discrimination laws and national security laws should be uncontroversial even in an election year. After all they are measures fully consistent with the submission put to the National Human Rights Consultation by the Federal Coalition.

The Labor government has baulked at the recommendation for an Australian Human Rights Act which would allow judges to assess Commonwealth laws, policies and practices for human rights compliance. Mr McClelland told the National Press Club that 'a legislative charter of rights is not included in the Framework as the Government believes that the enhancement of human rights should be done in a way that, as far as possible, unites rather than divides our community'.

There has been a recurring suggestion that the National Human Rights Consultation Committee which I chaired was a group of like-minded persons with a preconceived view on a legislative charter of rights, attentive only to the voices of an elite. Ironically, the suggestion has come from members of an elite with a preconceived view hostile to any such charter, invoking the good of the people, regardless of the views expressed by the people.

It is worth recalling that the discussion paper for the consultation was written by the Attorney General's department before the selection of the committee. The three questions put to the public did not mention a charter of rights specifically. Most people who made submissions and the majority of those who attended community roundtables morphed the discussion into a question about a human rights act.

35,000 people made submissions to us. More than 6000 came through the door and sat down for a two-hour discussion with us, as we conducted over 60 community roundtable discussions the length and breadth of the country. Of the 35,000 people who sent submissions of any sort, 33,356 expressed a view for or against a human rights act. 87 per cent of those who expressed a view were in support. The overwhelming majority of those 6000 persons who attended a community roundtable supported such an Act. The independent research resulting from a random telephone survey of 1200 persons turned up 57 per cent in support, 14 per cent opposed, and 30 per cent undecided.

The detailed social research also included focus groups and devolved consultations with some of Australia's most vulnerable people. The Committee put great store in the independently commissioned social research, presuming that the tens of thousands who made submissions and the thousands who participated in community roundtables, despite their record numbers, would not be fully representative of the community which includes persons not motivated, interested or educated about the issues raised in the discussion paper.

Definitely the support for parliamentary scrutiny and human rights education was even greater than the support for a charter. But there is no getting away from the public's interest in and sympathy for a human rights act.

The committee saw itself as performing a public trust, reporting to government on what we heard from the public. In light of what we heard we thought it appropriate to make recommendations about what would be workable in light of the public concerns and requests, honouring the principles of parliamentary sovereignty and federalism. We knew our task was politically charged once so many citizens wanted to focus on the question of whether Australia should have a human rights act. The Coalition parties were opposed. The Labor Party was divided.

Given the Cabinet decision not to legislate a human rights act, the Attorney General has done well in crafting a suite of measures otherwise responsive to the views expressed by the public. Some well informed persons who made submissions doubt the long term utility of a parliamentary committee of human rights, statements of compatibility for proposed legislation, and stipulations that public servants take into account Australia's human rights obligations — without the stick of judicial oversight which a human rights act would provide. Time will tell.

Victoria's Charter of Rights is to be reviewed next year. To date it has been applied selectively and without sufficient regard to evidence based policy. If the Victorian Charter proves more robust and consistent, and if there are proven shortfalls in the new Commonwealth measures, a Commonwealth Act will be back for consideration in 2014 when the Framework is reviewed.

Meanwhile politicians on both sides of the Chamber will continue to espouse the suspension of the Racial Discrimination Act for well intentioned interventions on Indigenous communities, protracted detention of asylum seekers while claims are put on hold, inhumane detention in inadequate facilities like Curtin, and rushed national security laws that leave even their elders on both sides uneasy with the civil liberties ramifications.

Australia is a great place for most of us to live enjoying our human rights. We can still do better. Injecting human rights discourse in public discussion and law making about contested issues often helps.

Critics of a human rights act should not get upset in future when judges fill some of the gaps despite the absence of a human rights act. As the Attorney General told the press club:

'It is the Government's view that the well-established principles of statutory interpretation, together with the proposed Statements of Compatibility and any Committee report — will provide the Courts with the appropriate tools to undertake their role in the context of the Parliament's enhanced focus on human rights considerations.'

If these appropriate tools prove inadequate as they have in countries like the United Kingdom, our politicians will need to be a little more attentive to the public who want to get right the balance between parliament and the courts for the good of all persons subject to Commonwealth laws and policies, maintaining unity and avoiding division between those with and without adequate human rights protection.

Frank BrennanFr Frank Brennan SJ is professor of law at the Australian Catholic University's Public Policy Institute and Adjunct Professor at the Australian National University. He chaired the National Human Rights Consultation Committee in 2009. This piece was also published today in The Age.

Topic tags: National Human Rights Consultation Committee, human rights act, Robert McClelland, framework



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Existing comments

We need to have a Bill of Rights inserted into the Australian Constitution which actually protects our basic human rights. Maybe Victoria's Charter of Rights may serve as the model to be adopted throughout Australia.
Terry Steve | 23 April 2010

And still no suggestion of a "Right to Life"
Peter | 23 April 2010

A right to life will doubtless be pronounced but, of course, it won't apply to unborn Australians.
Sylvester | 23 April 2010

A Human Rights Charter sounds great. Of course, any reasonable, thinking Australian should be in favour of “protecting human rights”. Yet, what are we protecting, other than the rights of a few to take precedence over the best interests of an overwhelming majority? 87% of the 35,356 persons who expressed interest also expressed support! 6000 people who attended a community symposium supported such an Act.

We are talking about a Charter that would impact on 20M+ Australians!! Hardly clean, inferential statistics Father Brennan, despite the Committee putting “great store” in “independently commissioned” social research. Again, what would such an Act protect apart from further infringements upon the sovereignty of a robust and transparent democratic political system?
A de Sousa | 23 April 2010

Unless Father Brennan's human-rights apparatus recognises the scientific fact that the existence of every individual human being begins at conception and, consequently, upholds the right to life during the nine-month period, plus or minus, from conception to birth it will be nothing but egregious hypocrisy.
Sylvester | 23 April 2010

A de Sousa expresses concern that a charter of rights would protect "the rights of a few to take precedence over the best interests of an overwhelming majority".

One wonders what is meant by the "best interests" of an overwhelming majority. A best interest to, say, beat homosexual people to death? A best interest to, say, intervene in Indigenous communities, forcing them off their country so that mining companies can blow it up?

Should we rely on A de Sousa's judgement to discern between the "best interests of an overwhelming majority" and mob rule, or should we pass some laws that, if we all behave in a civil manner, will never be needed?

Think of human rights legislation as a "safety net".
David Arthur | 23 April 2010

I don't know A de Sousa but I reckon that what he means is that it is vital to have a balance between individual human rights, on the one hand, and the common good, on the other. The 'best interests of the overwhelming majority' would not require homosexuals to be beaten to death but it would require marriage to be defined in law as the union of one man and one woman. It is also vital to get the balance right between rights and responsibilities, freedoms and obligations. Otherwise, society becomes unworkable.
Sylvester | 23 April 2010

The Age newspaper today carries a similar article by Fr Brennan titled "A charter of rights is divisive? The vast majority think not" and, beneath his photo, the comment -The refusal to frame a human rights act ignores the will of the people.

Fr Brennan is not responsible for titling an article and I hope that indeed he didn't provide it in this case because it conveys the wildly wrongful impression that "the vast majority" of Australians favour a charter of rights...when no such survey has been undertaken to support such a claim.

I would also ask Fr Brennan if the reference....the refusal to frame a human rights act ignores the will of the people...was part of his contribution or if that too was an addition by a sub editor of The Age. He needs to make that clear in a letter to The Age because, again, the 35,000 people who made submissions and the "overwhelming majority" of those who attended "a community roundtable" and "supported such a (rights) act" can never be truly said to represent the will of more than 22 million Australians.

I had hoped Fr Brennan would have offered his response to the comments of Premier Brumby who doesn't believe that a prisoner (Carl Williams) murdered in protective State custody is entitled to a Royal Commission - "because h's a serial killer" and it would be, thus,"an inappropriate use of taxpayers' money".....and that in Victoria which boasts a "Charter of Rights".

Now there's a real opportunity for lawyers and judges to speak up and make themselves heard.
Brian Haill | 23 April 2010

Good point. Brian Haill. How can Father Brennan speak of the will of the people in this matter of a bill of rights when, really, he doesn't know? Let us have a referendum to see what the people actually do think. My concern is that bill of rights activists, knowing what the result is like to be, will oppose a referendum and seek to smuggle this dangerous proposal in through the back door.
Sylvester | 23 April 2010

I also see the human rights of Australians, especially Indigenous Australians, and of refugees and asylum-seekers being deliberately denied under our present system. I wonder if the Universal Periodic Review of Australia's record on human rights, by the Human Rights Council (UN, Geneva) which takes place in 2011, has prompted this half-way meaasure? A 'something nothing' measure, as our PNG friends might put it.
moy hitchen | 23 April 2010

Prior to establishing Rights, that are transient, what are the basic Obligations a human has if any, for I suspect the baton has been dropped there.
Ken Mckay | 23 April 2010

To those commentators wanting more information about what the Australian public thinks about a Charter (rather than what those commentators or Frank Brennan think the Australian public should think), the Colmar Brunton research commissioned by the National Human Rights Consultation is useful. It is available on the web at$file/40338_AGD_Human_Rights_Full_Report_v6+1_8-9-09++FINAL.pdf
Frank Brennan SJ | 23 April 2010

Fr.Frank likes to bang on about the 33K plus who provided a written submission to his enquiry.A significant percentage of these were very short submiisions from members of far lefist groups such as Act Up and Amnesty International.These groups cannot be regarded as representative of mainsteam Australia.
Perhaps those who think we should have a bill of right would like list one or two right that are not currently protected under our legal system.
Peter Golding | 24 April 2010

Like Fr Brennan, I urge all to look at the Human Rights full report, URL on his post above.

It's a good read, and for those who are, as I am, sceptical as to the methodology of polling on issues such as this, a really, really good laugh.

Except that someone was paid taxpayers' money to do it, and, but for a finger to the electoral breeze, it would have been treated seriously by Mr Rudd.
HH | 25 April 2010

I know a lot of people that have been advocating for the bill of rights and one of the youth groups that I am involved in as well was advocating for it. The reason for that is because we believe that there should be a balance among people, there should be rights for our Aboriginal communities, and there should be rights for refugees and asylum seekers when they are seeking refuge in Australia. Even though a lot of people believe in this Bill (including me as a human first, a human rights advocate second and a social worker third) I still did have the feeling of that, the bill will not pass and the reason for that is because if the bill does pass that means the Aboriginal communities will have to get full rights, rights that they do not have and a lot of us take for granted. If this bill did pass Australia will be looked down upon by the international community because unfortunately we do tend to take double standards such as being a signatory of the 1951 Refugee convention, however at the same time we recently introduced a very unreasonable policy which is all about the (suspension of the processing of new asylum applications)... however saying that hopefully one day with people power we will change this labor/liberal order.
salam | 27 April 2010

We all have rights, the victim and the criminal. We cannot sign them away. The tricky part is how to balance them fairly as sometimes they are competing. A Bill of Rights would help us in that balancing act. But the most important thing is the practice not the policy. Human rights should be practised by all. As well as balancing rights, this means the state must link its decisions to international human rights conventions, consult, be accountable, not discriminate, and empower people/communities to take action.
susan biggs | 28 April 2010

I asked the panel why they thought a charter would be of use when the refugee convention is our own law and we chuck it in the bin when it suits.
Marilyn | 29 April 2010

Until Frank and his "Rights" lobby mates articulate what rights they think are underprotected, why a vague human rights act is better at protecting them than more specific legislation and what changes they think such an act will cause to our government, legal system and broader society, people will not swallow their spin.

Frank swallow your pride and drop it. No one but you, your "rights" lobby mates and the trendy left-leaning inner city chattering classes care about this. It's time to stop being a politician and go back to being a priest.
Reality Check | 29 April 2010

OK Reality Check, there are no legal human rights protections for one single person in Australia. Under the constitution there is no such thing as an Australian or a Prime Minister and we still have a constitutional white Australia policy.

Anyone in this country can be dragged off the streets by a public servant working for DIAC and thrown into detention without warrant or hearing or charges.

Marilyn | 02 May 2010


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