DAVID ADAMS reports …
Proposals for a national Human Rights Act in Australia have sparked a fierce debate ahead of this week’s public hearings in Canberra.
The proposed act is one of numerous options being considered as part of a national human rights consultation process led by an independent committee charged with looking at whether human rights are sufficiently protected and what could be done to better protect and promote them.
HOW TO BETTER PROTECT HUMAN RIGHTS?: Website of the National Human Rights Consultation which was launched last December and will report its recommendations to the Federal Government in August.
“The key concern we have is that it really does involve a shift of policy making power from the elected parliament to the judiciary. So it really blurs the line between the separation of powers, which is a key doctrine of the Westminster system of government. We don’t want to see judges making declarations of incompatibility over legislation that’s been passed by the democratically elected parliament.”
– Lyle Shelton, Australian Christian Lobby
Launched in December last year, the committee is chaired by human rights campaigner Father Frank Brennan and includes former diplomat Philip Flood, journalist Mary Kostakidis, former Australian Federal Police Commissioner Mick Palmer, and lawyer Tammy Williams.
The committee, which has already held 70 community roundtable sessions in towns and cities across Australia and received some 35,000 submissions, is holding three days of public hearings at Parliament House, Canberra, this week.
Much of the debate has so far been centred on whether Australian should introduce a national Human Rights Act – a proposal which has prompted strong responses from those on both sides of the issue.
Among those opposed to the idea – other prominent opponents include former New South Wales Premier Bob Carr – is the Australian Christian Lobby which in May launched a national campaign against the introduction of a Human Rights Act or Charter. To date, more than 12,000 people have signed a petition which asks that elected representatives remain responsible for human rights rather than unelected judges and calls for a referendum should be held should such a bill be introduced.
Lyle Shelton, chief of staff at the Australian Christian Lobby, says while Christians are concerned with human rights and have historically been at the forefront of defending them – he cites the campaign to abolish slavery and the emergence of the trade union movement as two examples – the ACL concerns relate to whether an act is the best way of protecting them.
“We’ve come to the view that we don’t believe it is…” he says. “The key concern we have is that it really does involve a shift of policy making power from the elected parliament to the judiciary. So it really blurs the line between the separation of powers, which is a key doctrine of the Westminster system of government. We don’t want to see judges making declarations of incompatibility over legislation that’s been passed by the democratically elected parliament.”
Mr Shelton says there are better ways to protect human rights such as pushing forward new legislation to address human rights breaches when they occur.
“That’s a safer way than having an abstract statement if rights which can be interpreted very, very subjectively by someone who is in an unelected position. I think that’s a real danger to our system of government.”
Along with organisations such as Amnesty International, the Australian Human Rights Commission is among those calling for the introduction of a Human Rights Act.
Commissioner Graeme Innes told Sight that the commission believes there are currently “gaps” in human rights protection in Australia.
“In relative terms, Australia has a good human rights record as compared with countries around the world,” he says. “But we could do much better than we do. What happens is that it’s usually vulnerable and marginalised people who are disadvantaged in terms of human rights protection in Australia.”
He says examples of where gaps had been found in human rights protection include the 17 year gap in life-expectancy between indigenous and other Australians, the treatment of former immigration detainee Cornelia Rau and deportee Vivian Alvarez Solon, and the government policy – only recently changed – under which asylum seeker children were held in detention.
“What we need is a culture that gives values and gives importance to human rights amongst our public servants and amongst our community so that when decisions are made, they’re made on the basis of the rights that Australia has pledged to, if you like, through its international commitments. We think that a Human Rights Act would, in fact, bring human rights home.”
“What we need is a culture that gives values and gives importance to human rights amongst our public servants and amongst our community so that when decisions are made, they’re made on the basis of the rights that Australia has pledged to, if you like, through its international commitments. We think that a Human Rights Act would, in fact, bring human rights home.”
– Commissioner Graeme Innes, Australian Human Rights Commission
He says the aim of a Human Rights Act would be to stop human rights breaches “before they occur” by requiring parliaments, public servants and organisations working on behalf of governments to act in line which human rights principles.
Mr Shelton, meanwhile, says that while the judiciary already interpret laws passed by parliament, the proposed Human Rights Act is a different situation.
“This is a situation where judges can pro-actively make a determination about law and really put enormous pressure on politicians to conform to a certain policy agenda. Now we don’t think that’s the role of the courts – it politicises them – and its really the role of the parliament through our democratic mechanisms and systems for them to make public policy because that involves a process of rigourous debate, it’s open, it’s public.”
He adds that the ACL believe that giving the judges “that level of power” is a “monumental shift” in the way Australia’s political system works.
But Commissioner Innes says the model proposed in the AHRC’s submission “in no way” removes the right of parliament to make decisions about human rights issues.
“And it still allows parliaments to make decisions which may breach human rights,” he says. “But what they have to do before they do that is be conscious that is what they are doing and understand that a decision that they’re taking at a particular time would breach Australia’s human rights commitments.”
The ACL has made a submission to the National Human Rights Consultation in which it has put forward a number of recommendations to further strengthen and protect human rights.
These include widening the mandate of the Senate Standing Committee for the Scrutiny of Bills – currently charged with scrutinising all bills that come before parliament to see, among other things, if they trespass unduly on personal rights and liberties – to include scrutinising existing acts to ensure their compatibility with human rights.
The ACL have also called for the role of the commonwealth and state ombudsmen to be strengthened if needed and better publicised.
But the Australian Human Rights Commission – which has also made a submission to the committee – is of the view that while some issues surrounding human rights could be addressed through means other than a Human Rights Act, that wouldn’t be the case with all.
Commissioner Innes says that while widening the mandate of the Senate committee would improve human rights protection, “our view is that the way to achieve the best human rights protection is to follow the example of all other Western democracies…and pass a Human Rights Act”.
The Australian Christian Lobby, however, argue that the experience of countries where such an act or charter has been introduced shows such legislation won’t provide any guarantee that rights are better protected.
LOOKING FOR MORE INFORMATION?
National Human Rights Consultation
~ www.humanrightsconsultation.gov.au
Australian Christian Lobby’s Make A Stand website
~ www.makeastand.org.au
Australian Human Rights Commission
~ www.hreoc.gov.au
Mr Shelton cites the example of the United Kingdom, which has had such an act since 1998, and yet still has children being held in immigration detention.
”The charter of rights has been useless in terms of guaranteeing or better protecting their rights,” he says. “Australia settled the issue of kids in detention at the ballot box which is the democratic way to do things.”
Mr Shelton also points to what he says are “horror stories” about the way in which human rights acts have been used overseas.
“In Canada, you had judges rule that marriage between a man and a woman infringed human rights. Despite the legislature clearly saying marriage is between a man and a woman, judges over-ruled that.”
“There’s example after example of ridiculous, absurd things happening in the name of human rights because of the subjective nature in the way human rights can be interpreted from the bench…”
The committee will make its recommendations in a report to the Federal Government in August.
