The first big Australian political story of the year has raised surprisingly little attention. This is likely to change when the civil liberties lobby realises that the Rudd Government appears to have junked the human rights agenda.
Last Wednesday, The Australian Financial Review reported an interview with the Attorney-General, Robert McClelland. There was considerable media focus on his comment that the Rudd Government, if re-elected, would consider a referendum on the republic, the recognition of indigenous Australians, local government and co-operative federalism.
The interest faded when the Deputy Prime Minister, Julia Gillard, said Kevin Rudd had made it clear “there are no present plans to have a referendum” on the republic.
Gillard said the Government was focused on immediate challenges and mentioned lifting educational standards. Fair enough. But if the republic is a lower-order issue to education, then education reform should take precedence over a human rights act.
This was the part of the McClelland interview that was essentially overlooked. He said it was the Government’s philosophy that “the enhancement of human rights should be done in a way that as far as possible unites a community rather than causes further division”.
If this is the case then a human rights act seems doomed. Writing in the Herald last February, the human rights lawyer Geoffrey Robertson, QC, maintained that at the 2020 Summit “a thousand articulate members of the community came down in favour of … a charter of rights”. Not so. This issue was only discussed in any detail at the summit’s constitution, rights and responsibilities sub-stream, which was chaired by the legal academic Helen Irving.
There was majority support among sub-stream delegates for a charter of rights but also strong minority opposition. Following the summit, McClelland established the National Human Rights Consultation, chaired by the lawyer Father Frank Brennan, with three other members. He erred in not including someone who opposed a charter of rights. Irving would have been an ideal appointment.
The group released a report in September. Its most controversial recommendations turn on the proposal that Australia should adopt a human rights act and that the High Court should be empowered to declare a Commonwealth law to be incompatible with it. The Brennan report says that this recommendation may prove impractical. Brennan told The Weekend Australian in September: “My own view is that I think this provision is not going to be workable.”
Little wonder McClelland is wary. In its foreword, the Brennan report concedes the Coalition is opposed to a human rights act and the Labor Party is divided on the issue. Two of the most articulate opponents are the former NSW premier Bob Carr, and the NSW Attorney-General, John Hatzistergos.
Then there is the new Liberal Party leader, Tony Abbott. As McClelland well knows, Abbott is capable of running a very effective campaign against a charter presented as giving more power to unelected judges and bureaucrats at the expense of the elected representatives of the people. Abbott’s case would be strengthened by the fact that, on this issue, his views are close to those of Carr and Hatzistergos.
The Brennan report revealed that a majority of Australians believe that human rights are adequately protected now. Outside such advocacy groups as GetUp! and Amnesty, there is little call for a charter. The majority of submissions came from these organisations while most of those opposing came from the Australian Christian Lobby.
In the lead-up to this year’s federal election, Rudd and his colleagues do not need an argument with Christian groups – including the Catholic Archbishop of Sydney, Cardinal George Pell, who has expressed concern the human rights lobby is intent on constraining religious freedom. As McClelland has indicated, the Rudd Government does not want to preside over a divisive debate on this issue.
Nor is there reason to. Irving is correct in arguing that the Australian rights record is no worse, and in many cases is better, than in countries which have a bill of rights. Such recognition is missing from the Brennan report. The tone of Australia Day suggests that most Australians are happy with their lot. It seems that McClelland has come to a similar conclusion.