Improving Australian Democracy with a Human Rights Act

As Attorney-General, my first priority would be to formulate a Government response to the report of the National Human Rights Consultation, chaired by Fr. Frank Brennan.  The 450 page report is extensive and contains a very wide-ranging series of recommendations.  Some are controversial and there has already been a lot of related traffic across my desk.  I received a delegation from the Churches, led by Cardinal Pell, who was concerned about the impact that the recommendation that Australia adopt a Human Rights Act might have on religious organizations.  Catherine Branson QC, President of the Australian Human Rights Commission has made it clear, on behalf of her constituency, that the Commission strongly supports the Consultation Panel’s principal recommendations.  I expect a petition of thousands from Get-Up any day now.  The politics of this are not easy. There are things in the report I don’t like.  For example, the Panel recommends that we develop a national human rights education plan in order to promote what they call a ‘human rights culture’.  I think I know what they’re getting at but the language has a certain all-embracing fervour about it that I find unattractive.  I am committed, however, to educating Australians much better about our constitutional, governmental and human rights framework.

This is much needed if the Panel’s independent polling suggesting that Australians still have much to learn about these things is anything to go by.  I’m also a bit bothered by the Panel’s suggestion that we should consider ourselves as ‘rights-holding entities’.  I’m not sure that doing so would advance our image of ourselves or our conception of the nation terribly far.  I don’t identify as an entity.

My more general impression, however, is that the report is informed, thoughtful, rigorous and compassionate.  It provides a sound and sensible foundation for protecting the fundamental human rights of all Australians.  And I am impressed by the very large numbers of people who took the time to make their views known.  No other inquiry in Australia’s history has generated this degree of interest and involvement.

Wisely, the Panel conducted independent polling concerning Australians’ views as to whether their human rights are adequately protected and whether they support the enactment of comprehensive human rights legislation.  The fact that more than 80% supported that option weighed heavily with the Committee and it does with me too.

So, it is my intention to recommend to Cabinet that the Government introduce a Commonwealth Human Rights Act.  The Act would protect the fundamental human rights of Australians that national governments of every political complexion have promised to observe when they ratified all seven major UN human rights treaties.

The Committee suggests that many of its recommendations may be set in place even without the introduction of a Human Rights Act.  That may be so, but it is my view that none of those recommendations will be as effectively implemented unless there is a statutory foundation for human rights protection.

For example, human rights education in schools will only be effective if school kids understand that their human rights are embodied in law and that, therefore, society regards them as reflecting values to which all Australians are firmly committed.  The Panel recommends that the Federal Government should conduct an audit of all federal legislation to determine whether it is consistent with our international human rights obligations.  But surely it would be better if this audit was conducted by reference to specific, national human rights legislation than to try and audit by reference to more general, internationally mandated standards.  Similarly, the Panel recommends that a new Joint Committee on Human Rights be established in the Federal Parliament.  This Committee would review all Bills for compliance with human rights.  This is a great recommendation that would do much to strengthen the Parliament’s role in holding the Government to account.  But, as the adviser to the equivalent British Committee made clear during a visit to Australia, the Committee will only have the influence it should if it is backed by enforceable, national human rights law which also provides for judicial remedies where appropriate.

Finally, I’m reassured by the fact that the Panel has recommended that the ultimate say on the validity of legislation will rest with the Parliament rather than the Courts.  Of course, as a politician, I would say that.  But there is a point of principle here as well; we live in a Westminster and not a Washington system of government.  And in this system we need to recognize that legislative supremacy must in the end rest with the Parliament.

Having said that, however, I’m not at all troubled by the Courts ruling on whether federal laws are consistent with the rights set down in an Australian Human Rights Act.  The Parliament will write the legislation.  The Courts will interpret it.  That is as it should be.  Armed then with the considered views of the relevant Minister, the parliamentary human rights committee and the judiciary, the Parliament will be in the best position possible to determine whether, and in what way, its legislation should best be amended to conform with the fundamental human rights to which we, as Australians in all our diversity, have declared our common commitment.

Now, to persuade the Prime Minister…

Professor Spencer Zifcak is Allan Myers Chair in Law and Director, Institute of Legal Studies, Australian Catholic University