Crossin: The Rights of the Human Rights Act

Senator Trish Crossin presents her views on a human rights act for Australia at the Darwin launch of New Matilda’s Human Rights Act campaign.

THE RIGHTS OF THE HUMAN RIGHTS ACT

Paper presented to the Darwin Launch of the
Campaign by New Matilda
for a Human Rights Act for Australia

21 July 2006

I would like to begin by acknowledging the Larrakia people who are the traditional custodians of this land and to also thank the “Human Rights Act for Australia” Campaign and New Matilda for the opportunity to contribute to this historic launch tonight.

Robert Menzies once said, “Responsible Government in a democracy is regarded by us as the ultimate guarantee of justice and individual rights.”

So tonight I want to look at what Rights would a Human Rights Act have in this country and what role the Federal Parliament could play in protecting our fundamental human rights and in the oversight of such an Act.

It must be acknowledged that there are gaps that exist in the current system and that our rights, once they are defined, could be specified and protected within a Human Rights Act.

Those of us who are here tonight believe that not only would a Bill of Rights achieve a better protection of our rights but would indeed make a difference.

International issues such as globalization and more recently terrorism are posing increasing threats to governments around the world to the extent that one such consequence is increasing pressure on parliaments to become compliant.

By their very nature, however, the changes proposed by governments in the face of economic imperatives, global forces, and threats to security have the potential to infringe upon personal rights and liberties.

These are precisely the types of change that require consultation, community support and the careful consideration of parliamentary representatives.

In a rapidly changing environment, the safeguards provided by our parliamentary systems may be more important than ever.

In this context, a bill of rights could provide a useful counter balance and a framework which underpins the work of the parliament and the courts to work together to make sure that the balance is right - protecting the community while preserving our basic rights.

This draft bill provides for a Joint Standing Committee to be established which would have responsibility for comments and recommendations relating to Human Rights in Australia including an oversight of the compliance or otherwise with other legislation and the courts.

In the last nine years it would be been kept extremely busy considering the following matters:

• The process of a far trial for David Hicks,
• Holding of women and children in detention centres,
• This country’s ambiguous position on the death penalty,
• Funding cuts to the Human Rights and Equal Opportunity Commission and the attempts to diminish its role,
• Ignoring criticisms by UN human rights bodies and relevant committees,
• And more recently the introduction of an extreme industrial relations package which significantly undermines the rights of workers,
• And finally the latest passage of the anti terrorism laws, including its sedition provisions.

The role of the Senate, and indeed general parliamentary oversight and scrutiny, has been the subject of much discussion lately.

It is interesting to note that in 1987 when as the Opposition Leader John Howard said that the Senate was ‘one of the most democratically elected chambers in the world.’ Interesting that in the last three years, he has become its most ardent critic.

From July 1981 to July 2005, the balance of power between the government in the lower house and the non-government controlled Senate - with its functions of scrutiny, accountability and review - was a key political dynamic of the period.

Over the last twenty years, Senators of all political parties agreed to implement mechanisms and processes, such as legislation and references committees, which developed and enhanced the capacity of the Senate to carry out its functions as a house of review.

The paired system of committees - with government controlled legislation inquiries and non-government controlled references inquiries - was used to facilitate the Government’s legislation program but also to hold governments to account; scrutinise executive actions; review and amend legislation; and directly involve the community in the work of the Parliament.

As the Senate has become a more powerful check on Government, the respect for the institution in the Australian community has grown with it.

Reflecting on the Government’s exercise of its Senate majority over the last year, it is clear that the Howard Government of 2006 has abandoned any commitment to the proper role of the Senate.

Over the last 12 months, we have seen the mechanisms and processes of the Senate trampled over, and its core roles of accountability and review severely under threat.

In the Senate chamber, debate has been suffocated with the gag and major bills rammed through by use of the guillotine. John Howard has kept legislation inquiries disgracefully short, restricted and Canberra-centric - reducing public input, limiting investigation and minimizing scrutiny and debate.

The Senate and its Committee system provided a constitutional and practical safeguard which ensured that legislation was not passed without proper deliberation.

One committee in particular, which is already charged with looking at some of the matters relating to rights and liberties, is the Senate’s Scrutiny of Bills Committee.

It has a mandate to assess Bills for their effect on individual rights, liberties and obligations, and on parliamentary propriety.

In particular it reports to the Senate whether bills:

• Trespass unduly on personal rights and liberties;
• Make rights, liberties or obligations unduly dependent upon insufficiently defined administrative powers;
• Make rights, liberties or obligations unduly dependent upon non-reviewable decisions;
• Inappropriately delegate legislative powers; or
• Insufficiently subject the exercise of legislative power to parliamentary scrutiny.

This role is now considered crucial to the consideration of legislation in the absence of constitutional guarantees on rights and liberties, for instance in a Bill of Rights.

However I imagine you could just pass bills with provisions to exclude them from the Bill of Rights much like the Commonwealth Radioactive Waste Management (Related Amendment) Bill 2005 did to the Administrative Decisions (Judicial Review) Act 1977 Remember this was the legislation enacted that overrode NT legislation and laid the ground work for imposing a radioactive waste dump on the Territory.

As the Scrutiny of bills committee said of the Commonwealth Radioactive Waste Management (Related Amendment) Bill 2005:

“One purpose of this bill is to amend the Administrative Decisions (Judicial Review) Act 1977 to remove from the purview of that Act ‘a decision under section 7 of the Commonwealth Radioactive Waste Management Act 2005′. It is clear that this item makes rights, liberties or obligations dependent upon non-reviewable discretions.

The Committee said amongst other things “The Committee seeks the Minister’s advice as to the justification for the inclusion of this absolute ministerial discretion and for the abrogation of procedural fairness.”

Unfortunately this made no difference to the passage of the bill.

Fine work on this and other bills by the Senate Committees however are just ignored by the government. The Committee has no powers other than to comment - they have no legally enforceable standards such as a Bill of Rights to hold legislation up against.

Instead Parliament really comes back to the conscience of members and having the numbers.

Let me give you one example through my involvement in the Senate Legal and Constitutional Affairs Committee’s inquiry into the operation of the Anti-Terrorism legislation.

I joined with Senators from all political parties and in recommending that the Sedition provisions be scrapped and that the bill be redrafted, as the bill threatened to impinge on human rights and civil liberties.

However, despite calls from the Government’s own members, Attorney-General Phillip Ruddock rejected the Committee’s recommendations and pushed the bill through regardless.

A Bill of Rights would ensure that those fundamental freedoms are written down, and provide courts with the ability to examine and rule on instances where those rights may have been breached.

Although it is impossible know with any certainty how these events would have panned out if the Bill was passed at the beginning of my parliamentary career, I would suggest that with clauses in this bill which provide for the right to reasonable standard of living, the right to asylum, and the right to freedom of expression would have made for a very different political climate.

I would like to show my full support for the Bill of Rights as proposed by New Matilda.

I strongly believe that there is sufficient case for a Bill of Rights and I believe that those rights must be protected and that such a Bill must have the support of a Parliamentary Committee which would be able to communicate, educate, scrutinise and debate any laws which may fail to protect our human rights.