OPPOSITION SENATORS' DISSENTING REPORT
1.1
The central provision of the Human Rights (Parliamentary Scrutiny)
Bill 2010 is for the creation of a Parliamentary Joint Committee on Human
Rights (cl. 4). This proposal reflects the adoption by the Gillard Government
(and previously the Rudd Government) of the policy of the Opposition, as
articulated in its submission to the National Human Rights Consultation (NHRC).
The Opposition urged that course as a preferred alternative to a statutory bill
of rights. Our concern was to locate debate about human rights at the heart of
the legislative process, rather than allow the legislature to abdicate
decisions about fundamental values to an unelected and unaccountable judiciary.
The Opposition's submission said:
...the Opposition urges the NHRC to recommend against the
adoption of a statutory bill of rights as its preferred model. Instead, the
Opposition recommends that expanded Parliamentary scrutiny of legislation from
a human rights point of view is a better alternative. The option we propose has
the advantage of locating greater emphasis on human rights at the heart of the
political system itself while it is free of the potentially undemocratic
consequences of placing unprecedented power to resolve essentially political
questions in the hands of the judiciary. ...
Specifically, the Opposition invites the NHRC to consider recommending
the establishment of a new Parliamentary Committee (either a Joint Standing
Committee or a Standing Committee of the Senate), which would be given the
specific task of considering legislation from a human rights point of view.[1]
The proposal was also an election commitment of the Opposition
at the 2010 election.[2]
1.2
The Report of the National Human Rights Consultation (the Brennan
Report) considered the desirability of enhanced Parliamentary scrutiny and
recommended the establishment of a Joint Parliamentary Committee on Human
Rights "to review all Bills and relevant legislative instruments for
compliance with the interim list of rights and, later, the definitive list of
Australia's human rights obligations." (Recommendation 7)[3]
This was in addition to, rather than an alternative to, a statutory bill of
rights.
1.3
On 8 October 2009, the Attorney-General, the Hon. Robert McClelland MP,
announced that the Government had decided not to accede to the Brennan
Committee's recommendation for a statutory bill of rights.[4]
Subsequently, in April 2010, the Government announced a "National Human
Rights Framework" which included a Parliamentary Committee, to which the
bills under consideration purport to give effect.[5]
1.4
The Attorney-General's announcement is significant to the discussion of
the bills because it makes clear that the parliamentary scrutiny model was
adopted by the Government not, as the Brennan Committee urged, in addition
to a bill of rights but, from the Government's point of view, instead of
a bill of rights. It reflects the Government's ultimate conclusion that, as the
Opposition had argued all along, a bill of rights was not appropriate for modern-day
Australia. One of the matters to which the Senate should have regard in
considering these bills is whether they might be considered to introduce a
quasi-bill of rights by another form. Since such a measure has been rejected by
both sides of politics, it should not be allowed to be introduced by the back
door.
Is a Parliamentary Human Rights Committee necessary or desirable?
1.5
A number of witnesses pointed to the fact that the Parliament already
has the capacity to scrutinize human rights issues arising from legislation
through the Senate Scrutiny of Bills Committee, (in relation to delegated
legislation) the Senate Standing Committee on Regulations and Ordinances, and
indeed the Senate Legal and Constitutional Affairs Legislation Committee itself.[6]
Opposition Senators are impressed with the work of those committees, but are of
the view that their very success is a powerful argument for enhancing their
function. The most prestigious committees of the Parliament are the Joint
Standing Committees, such as the Joint Standing Committee on Foreign Affairs,
Defence and Trade. If we wish to elevate the importance attached to the
consideration of the human rights aspects of legislation—and the Opposition
does wish to do so—it is appropriate that that function be made more central to
the legislative process than is currently the case in, for instance, the
relatively sequestered Scrutiny of Bills Committee. Even a witness as sceptical
as Professor James Allan was of the view that 'The joint committee aspect is a
good idea. To turn it from a Senate committee into a joint committee seems like
a good idea to me...'[7]
1.6
Establishing a Joint Standing Committee would have two immediate
practical consequences. First, as a joint committee, it would obviously draw
upon Members of the House of Representatives as well as Senators. Whilst the
Senate's superior role as the pre-eminent house of review is unquestionable,
expanding human rights scrutiny across the whole Parliament is itself desirable.
Undeniably, many Members of the House of Representatives, from both sides of
politics, have taken an active interest in the field, and it seems strange to
deny to those members of the lower house with a significant contribution to make,
the opportunity to do so.
1.7
Secondly, a Joint Standing Committee would routinely hold public
hearings, which would afford interested stakeholders, and the public generally,
the opportunity to participate in the process. At a time when invasive
legislation poses an ever-increasing threat to the freedom of the individual
and even the rule of law itself,[8]
shining a light on the human rights implications of legislation is a key
concern of the Opposition. As the Shadow Attorney-General reminded the Brennan
Committee:
...the Liberal Party is the only political party currently
represented in the Federal Parliament which was specifically brought into being
for the very purpose of advancing the rights of the individual, rather than
protecting class or sectional interests. Accordingly, for the political viewpoint
which I represent, the protection of individual rights is core business.[9]
1.8
Accordingly, Opposition Senators support Part 2 of the Bill, which
constitutes the Parliamentary Joint Committee on Human Rights.
1.9
Nevertheless, there are several other aspects of the Bill which, in the
view of Opposition Senators, go well beyond the establishment of an
appropriately-mandated committee and, for reasons which we will explain, are
dangerous.
The definition of 'rights'
1.10
Clause 3 of the Bill defines human rights exclusively by reference to
seven listed international conventions. Opposition Senators strenuously oppose
this approach to the definition of human rights, for several reasons.
1.11
In the first place, bizarrely, the definition of 'human rights' entirely
ignores the human rights Australians enjoy under our own domestic law. Yet, as
was apparent from the evidence before the Brennan Committee itself, Australia,
while not perfect, is nevertheless one of the most rights-respecting nations in
the world. Indeed, one of the striking things about the Brennan Committee's
hearings was how often the criticism of Australia's human rights record
amounted to identification of the gaps in our human rights protections,
rather than assertions that protections of human rights are not strongly rooted
in our law, or that Australians are not rights-respecting people.
1.12
This view was also reflected in some of the submissions before the
current inquiry. For instance, the witnesses from the Human Rights Law Resource
Centre, in the course of a very cogent presentation, spoke of their
dissatisfaction with the status quo because human rights protection
was 'a patchwork quilt'—a metaphor which implies that the protections we have
arise from a variety of different sources and (by implication) that there are
gaps in the 'patchwork'.[10]
Yet surely, the real question is whether the human rights of Australians are
adequately protected, not whether the sources of our human rights are so
various that they offend a tidy-minded craving for jurisprudential uniformity.
1.13
Clause 3 of the Bill has taken that attitude to an absurd
extreme, by actually ignoring the wide variety of human rights protections
under Australian domestic law, and incorporating in their entirety a series of
international instruments, some of the provisions of which are already
reflected in Australian law, and some of which are not, nor should be. The
draftsman's approach seems to Opposition Senators to be an unhappy convergence
of internationalist cosmopolitanism and Benthamite zeal.
1.14
The human rights of Australians are already largely protected by the
three principal sources of our law: the Constitution, the common law,
and the statutes of both the Commonwealth and State Parliaments. If this is
piecemeal, it is none the worse for being so, and in any event this 'patchwork'
of constitutional, statutory and common law sources is characteristic of most other
areas of Australian law.
1.15
The Constitution guarantees, among other things, the rights of
electors to vote in elections for the Commonwealth Parliament (s. 41), the
right to protection against discrimination in the levy of taxation (s. 51(ii)),
the right to just terms in the event of the acquisition of property (s.
51(xxxi)), responsible government (s. 64), the independence of the Federal
judiciary (s. 72), the right to trial by jury for Commonwealth indictable
offences (s. 80), Parliamentary control over the expenditure of the executive
government (s. 83), freedom of interstate trade (s. 92), the right to the
reasonable use of water (s. 100), and the rights both to freedom of religious
observance and to refrain from religious observance (s. 116). Numerous
Commonwealth statutes confer or give effect to substantive rights, for
instance, the right to freedom from discrimination guaranteed by the Racial
Discrimination Act, the Sex Discrimination Act, the Disability
Discrimination Act and the Age Discrimination Act. The statutes of
State Parliaments take human rights protections still further, for instance in
the numerous protections contained in the various statutes governing their
criminal justice systems.
1.16
As well, the common law itself is the source of numerous fundamental
rights. As the Chief Justice of New South Wales, the Hon. James Spigelman AC,
pointed out in his influential McPherson Lecture in 2008,[11]
the common law enshrines numerous common law principles in the form of
rebuttable presumptions that Parliament did not intend, by legislative
enactment:
-
to retrospectively change rights and obligations;
- to infringe personal liberty;
- to interfere with freedom of movement;
- to interfere with freedom of speech;
- to alter criminal practices based upon the principle of a fair
trial;
- to restrict access to the courts;
-
to permit an appeal from an acquittal;
- to interfere with the course of justice;
- to abrogate legal professional privilege;
- to exclude the right to claim protection against
self-incrimination;
- to extend the scope of a penal statute;
- to deny procedural fairness to persons affected by the exercise
of public power;
-
to give executive immunities a wide application;
-
to interfere with vested property rights;
- to authorise the commission of a tort;
- to alienate property without compensation;
- to disregard common law protection of personal reputation; and
- to interfere with equality of religion.[12]
1.17
It is, for those reasons, obvious to Opposition Senators that any
identification of the source of our rights should therefore commence with the
rights already guaranteed by Australian domestic law. But Opposition Senators
have a deeper concern about the method adopted by the Bill for the
identification of rights. Each of the seven international instruments purports
to codify rights. The codification of rights can never be neutral, both because
the decision of which rights to include and which to omit involves a
value-judgment, and because the description of those identified rights will
seldom be uncontroversial. The ACT Charter of Rights, for example, does
not recognise a right to the use and enjoyment of private property—yet most
Australians, we believe, would regard property rights as fundamental human
rights. Furthermore, lists of rights provide no guidance in cases where one
right—for instance, freedom of speech—comes into conflict with another right—for
instance, the right to be treated with dignity and respect.
1.18
In our view, not only is it undesirable to recognize international
instruments as the exclusive, or even the main, source of rights; it is fraught
with danger to attempt to codify rights at all. This was at the heart of the
debate about the bill of rights itself, and was one of the principal arguments
against it. As well as causing the difficulties identified in paragraph 1.17,
any list or code of rights will inevitably be treated by some, including
perhaps courts, as a definitive expression of Parliament's view of what human
rights we enjoy (and, conversely, the omission from the list as the definitive
negation by Parliament of other putative human rights). This would amount to a bill
of rights by the back door—the very thing which we warned against in paragraph 1.4.
1.19
Finally, Coalition Senators counsel against falling into the error of
treating the proposed committee's role as if it were performing the essentially
legal function of applying codified statements of human rights to a given bill
before it. This appeared to be the view of the role of committee of Professor
Spencer Zifcak, the Vice-President of Civil Liberties Victoria:
It is a two-stage process. The first stage is to look at the
legislation and determine whether or not it looks, on its face, to be
consistent or inconsistent with a human rights contained international treaty—
... And then, as in the Victorian charter, as in the ACT charter, as
in the Canadian charter, as in the New Zealand legislation, there is a second
question, which is, if legally speaking it looks as though there is an
inconsistency between a human right as defined in an international treaty for the
purposes of this legislation and the legislation that we are concerned with, in
all of the circumstances can the limit on human rights that is contained here
be justified, to use the legal terminology, in a manner that is demonstrably
justified in a free and democratic society? That is a question, of course, that
the parliamentary committee is going to deal with and nobody has an argument
with it.
...
Senator BRANDIS—But you make little or no allowance
for the opinions of the members of parliament who will be the members of the
committee. You seem to be saying—
Prof. Zifcak—We are talking about human rights contained
in the international human rights treaties and, let us add for the time being,
fundamental human rights recognised within the common law. If we take that
as our starting point, that is what the committee has to look at in determining
whether or not legislation is consistent with human rights; otherwise, you
have got no standard and, in my view, you have got no effective process.
...
Prof. Zifcak— The question we are fundamentally debating
is: how do we define human rights? What I am saying is—
Senator BRANDIS—That begs the question as to whether there
is a second definition.
Prof. Zifcak—we have a clear starting point in relation
to that, and I will not go back into that point. The next question is: once we
define those human rights in general terms, in terms of the international
treaty, of course there is a process of interpretation to be gone into. That is
why I say that at least the first part of the question is essentially a legal
question, and to assist us with that we have 60 years of international and
comparative human rights jurisprudence.[13]
As is clear from Professor Zifcak's evidence, over-reliance
by the committee upon codified statements of human rights in international
instruments not only mistakes the committee's function; it also encourages the
misconceived view that a settled body of international human rights
jurisprudence resolves all disputes about essentially moral issues which are,
by their very nature, intensely contestable.
1.20
Coalition Senators are strongly of the view that it should not be the
committee's role merely to analyze Australian legislation in terms of
international human rights law. It is not a court of law, it is a committee of
the Parliament; its role is a political and legislative one, not a
quasi-judicial one. We find much more wisdom in the approach of a
distinguished former Senator, Barney Cooney:
Not all members of parliament are lawyers...but nearly all
want a fair go for the people of Australia. When interpreting instruments
whether made here or overseas it is an advantage to have a legal training, but you
do not need legal training to know what a fair go is. People of goodwill know
what it is. Most parliamentarians are people of goodwill. Parliamentarians have
to have confidence in themselves...If the legislature is to function better
then it should do with the parliamentarians acting as such and not as lawyers.[14]
1.21
In the view of Coalition Senators, a much more effective way for the
Bill to address the issue would be to avoid 'ruling in and ruling out'
particular rights, but leave it to the members of the Committee, informed no
doubt by the submissions before them, to consider what are and what are not
relevant human rights. In that regard, the Bill could do worse than adopt as
its starting point the method of the Scrutiny of Bills Committee, which
provides, by Standing Order 24, the following:
...whether such bills or Acts, by express words or otherwise:
(i)
trespass unduly on personal rights
and liberties;
(ii)
make rights, liberties or
obligations unduly dependent upon insufficiently defined administrative powers;
(iii)
make rights, liberties or
obligations unduly dependent upon non-reviewable decisions;
(iv)
inappropriately delegate legislative
powers; or
(v)
insufficiently subject the
exercise of legislative power to parliamentary scrutiny.
1.22
We do not suggest that those very words be used, but the
non-prescriptive approach to rights, in our view, has much to recommend it. Perhaps
the jurisdiction of the Committee could be more fully described by reference to
'the rights which exist under the Constitution; under Acts of the
Parliaments of the Commonwealth, States and Territories; under the common law;
and under relevant international instruments to which Australia is a party and
which have domestic application by Australian law'. The Committee could also be
asked to consider whether there are 'any omissions in the protection of
personal rights and liberties arising from any of those sources, and how those
omissions might be addressed'.
Statements of compatibility
1.23
Part 3 of the Bill provides for Statements of Compatibility. This was
Recommendation 6 of the Brennan Report.[15]
Coalition Senators do not see the need for Statements of Compatibility. Their
standing would be, at best, that of an Explanatory Memorandum or a Second
Reading Speech. However, there is risk that a declaration of compatibility (or
incompatibility) by the Minister might be regarded as canonical, or conclusive.
In fact, it is merely the expression of the opinion of the Executive
Government. The whole point of enhancing Parliament's ability to scrutinize the
human rights impact of legislation is to empower the Parliament rather than the
Executive; it is the opinion of the former, not the latter, that matters in
deciding whether legislation is human rights compliant. In any event, should
the Joint Committee decide to hold hearings in relation to a particular Bill,
then, as is currently the practice, officers of the Attorney-General's Department,
or other relevant departments, would no doubt come before the committee in
order to express their views on the matter. That is a more appropriate way for
the Committee to inform itself of the opinion of the Executive Government, than
creating a procedure in which, in effect, the Executive certifies a statute for
compliance with human rights obligations, and thereby pre-empts the
deliberations of the Parliamentary Committee itself.
Recommendations
1. That
the definition of 'human rights' in cl. 3 of the Bill be amended and replaced
by a generic, non-prescriptive, source-based definition along the lines set out
in paras. 1.21-1.22.
2. That
the Bill be amended by omitting Part 3.
3. That
Part 2 of the Bill be supported.
Senator Guy
Barnett Senator Stephen Parry
Deputy Chair
Senator Russell Trood Senator
the Hon. George Brandis
Senator the Hon. Ron Boswell Senator
Julian McGauran
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