A Progress Report on the National Human Rights Consultation – Frank Brennan

Issue 3 | 7 July 2009

Frank Brennan SJ’s commitment to human rights advocacy spans 30 years. He is Chair of the National Human Rights Consultation and Professor of Law at the Australian Catholic University. Frank Brennan spent 18 months in East Timor, where he was the Director of the Jesuit Refugee Service. He is the author of many books, dealing with human rights, civil liberties, the humanitarian situation in East Timor and Aboriginal land rights. On Tuesday 7 July 2009, Frank Brennan addressed The Sydney Institute to explain the method, purpose and progress of the National Human Rights Consultation.

THE PROGRESS OF THE NATIONAL HUMAN RIGHTS CONSULTATION

FRANK BRENNAN

I’m honoured to be back here at The Sydney Institute to provide a progress report on our National Human Rights Consultation, and it’s a great pleasure to do so. It was at the end of last year that the Rudd Government announced this consultation. It was known that within the Labor Party there was a severe difference of opinion about the desirability of a Commonwealth Human Rights Act and, once Labor was back in government, it then became a contested question.

I was overseas teaching at the time, and I was asked whether I would accept a role on the committee. I happily said yes, even though as a priest I’d usually declined previous requests from government. This time it seemed that with the Labor Party so bitterly divided on this issue, there was the prospect of a truly transparent community consultation. My one other excursion into government consultancy had been with the Goss Government’s reference to EARC for the reform of Joh Bjelke Petersen’s public assembly laws. Having written the book Too Much Order with Too Little Law (UQP 1983) which critiqued that law and policy, I had thought it appropriate to see those reforms entrenched on the Queensland statute books.

Things got a little more difficult when I got to Rome and received the phone call from the Attorney, asking whether I would chair the committee, and I made the disclosure that I was something of a fence-sitter on charters like the Victorian and ACT models.  I was basically told that that was precisely why they wanted me to chair such an inquiry. So I’ve been happy to do so.

On the committee with me is Mary Kostakidis, whom you’d know from SBS days; also Mick Palmer who was Federal Police Commissioner, who’d be known to you from having done the inquiry into the so-called Cornelia Rau affair; and Tammy Williams, a young Indigenous lawyer from Queensland.

Mick has been taken up with other duties from time to time, particularly looking into piracy off the coast of Somalia, and so we’ve also had the services of Philip Flood, a very distinguished retired public servant who’d been the head of the Department of Foreign Affairs, and had done the inquiry for the Howard Government on intelligence services. So you can tell we’re not a group of soft lefties who simply have a preconceived view about where we might go in the protection of human rights in contemporary Australia.

Initially, under our terms of reference, it was said that we would wind things up by the end of July, but given the announcement was made over the Christmas period, you’ll appreciate that the country didn’t come back to work until after Australia Day, and so we commenced our undertaking in Parliament House in early February. And in early February, we took a number of steps: first we wrote to all members of the Commonwealth Parliament, we wrote to all the premiers, all attorneys-general, all chief justices, and said that we were available for ongoing discussions. And there have been ongoing discussions during these months.

We’ve also taken the opportunity to meet with key people involved in the governments in Victoria and the ACT, to try and get a handle on the practical workings of their charters of human rights in those two jurisdictions. Early in the piece, when we were called together by the secretariat, we basically looked at the proposed agenda for consultation throughout Australia, and we thought that it was too limited, and so we basically doubled the number of locations which we wanted to visit. As a committee, we were adamant that we shouldn’t only go to places where Qantas flew, in that if you’re talking about the protection of human rights in Australia you do have to get to some of the more remote areas.

And so, early in the piece, we applied for a one-month extension because we knew that we wouldn’t be able to complete the community roundtables until mid-June.  We were given an extension until the end of August 2009. And, as you may have seen earlier this week, we got our second and final extension for another month, and that was in light of the fact that we were expecting a few thousand submissions, but we’ve actually received more than 35,000 submissions.

There have been a number of campaigns that have been waged during the course of our inquiry, and we welcome that as part of robust democracy. The three main groups who have mounted campaigns have been GetUp, Amnesty International and the Australian Christian Lobby. We know that GetUp has provided us with over fourteen and a half thousand submissions; Amnesty International with about 12,400; and of other submissions we’ve received about 8000, which are there in our database. And as well as that, at the community consultations there have been something like 6000 individuals who attended those community consultations, and 2500 of those participants gave us a one-page written script at the end of each consultation. So you can see that it’s been a fairly thorough community consultation.

Our terms of reference are very specific. First, we’ve been asked to inquire what are the human rights and responsibilities that are important to Australians. Now, we know that we won’t be hearing from all Australians, but we’ve heard from quite a number. We readily concede that those who are making submissions to us or who are attending community roundtables, are likely to be people who are more communally active than would be the average, or who have a greater grievance than would the average. So, given that we’ve had some resources, we have also commissioned focus groups and a very detailed opinion poll which will be an integral part of our report in terms of options. The second question we’ve been asked is – how do you think we’re going in protecting and promoting those human rights and responsibilities? And the third, the sort of question that you are allowed to ask in a robust democracy is: Do you think that we can do better?  How could we better protect and promote human rights in contemporary Australia?

With the community roundtables, it’s fair to say that the further you get away from capital cities, the less abstract the discussion becomes. In fact, discussion of the sort that Helen Irving and others would have about human rights doesn’t have a lot of carriage in places like Mintabie or Coober Pedy ,Wadeye or Santa Teresa –  to name a few of the places that we visited. But what does have a lot of carriage are the questions: Do you think you get a fair go? What are the things that you’re missing out on? Do you think there are people who are falling through the cracks? Do you think as a nation we can do better? Those sorts of questions do basically address the terms of reference of our inquiry.

So we completed the community roundtables in mid-June, and we have just completed three wonderful days of public hearings in Parliament House in Canberra. I was fortified by the fact that I noted that George Brandis, the Shadow Attorney-General, attended about a half of the sessions over those three days, which was an indicator to me that we were getting the balance right in terms of putting the case for and against the various options, and considering where we’re going as a country.

The quality of the speakers was uniformly high. What we did over these three days was to structure it thus: Day One – we asked who are the people who miss out? Who’s falling through the gaps? How can we be a better country of the fair go? Day Two – we considered the charter debate: would we be better off with or without a Commonwealth charter of rights and responsibilities? And the third day was dedicated to the question: If you’re in favour of a charter, are there other things that you think we could do which would enhance the situation of human rights? And if you’re opposed to a charter, do you still think there are other things that we could do to improve the situation with human rights?

I will now set out what I at this stage see as issues of common ground, and what are the issues that are contested. In terms of common ground, as George Brandis himself said: there is no disagreement in this debate in Australia about the ends to be achieved. Everyone who participates in this debate is committed to the better enhancement of human rights for all persons within the Australian jurisdiction. That’s simply accepted as being axiomatic. The debate is about the means to the end. But even in terms of the means, there’s been a remarkable degree of agreement expressed, particularly by policy makers. Let me give a couple of instances.

Parliamentary scrutiny: Michael Tate, who was a minister in the Hawke Government and was then an ambassador and a professor of law, put forward a submission about the need for better parliamentary scrutiny of proposed laws, to ensure compliance with the international human rights instruments which Australia has ratified and enacted into domestic law.

George Brandis, as Shadow Attorney-General, has been brandishing that submission around the country, saying, this is the way to go. So whether or not there is a charter, there is agreement that presently the checks and balances we have within the parliamentary system are deficient, and that we can do better while honouring the sovereignty of Parliament, to ensure compliance with parliamentary sovereignty and with human rights instruments before there be legislation.

To give an instance here, from New South Wales: you recently here in New South Wales had passed in your Parliament the Crimes, Criminal Organisations Control Bill, the so-called bikies law. It was interesting to note there that none other than Greg Smith, the Shadow Attorney-General in the parliamentary debate, said this is too rushed. How do we know that there are appropriate safeguards and appropriate scrutiny of this legislation?

Now, the usual argument put by the New South Wales attorney, who is a strong opponent of charters of rights, is to say, “We have a legislation review committee.” You do have one of those in New South Wales. Just on that legislation, it didn’t report until a month after the legislation was passed through Parliament. And when it did report, it stated that there was undue interference with various rights and liberties. When the attorney was questioned about this at our public inquiry in Parliament House in Canberra on Thursday he simply said that he disagreed with the view of the Legislation Review Committee. Now, he may well be right, and the Review Committee may well be wrong. But the average citizen is left in the dark when someone like a Shadow Attorney-General of the legal standing of Greg Smith asks, “Has there been sufficient scrutiny? Can’t we do better in getting the safeguards right?” At a Commonwealth level, can’t we do better?  I think we can.

It’s acknowledged that at the federal level, we have a very robust and fine system of administrative law. But could we improve the system of administrative law where public servants making decisions would be required to take into account the basic human rights which we have ratified in the various international instruments, particularly the International Covenant on Civil and Political Rights? There is agreement that we have a very robust parliamentary system where usually the government doesn’t control the Senate, and where usually you’ll have a minor party with the balance of power in the Senate. Now, that’s a positive in terms of scrutiny and safeguarding the citizenry against a robust Executive. Are there ways in which we can enhance that within our federal system in order to get these checks and balances right?

So on things like parliamentary scrutiny, improving administrative law, enhancing the role of the Senate, looking at issues such as enhancing a better culture in the public service, better education for the public, and providing more resources in the bush for those who miss out, I think there’s general agreement.

Just to say a word about economic, social and cultural rights in the bush. One of the most profound submissions put to us came from Elizabeth Langdon, a magistrate in Kalgoorlie who then she came and appeared before us at Parliament House in Canberra. She described the situation of what it is to be a magistrate in remote Western Australia where, if you go to a place like Lenora, everyone who appears before you will be Aboriginal. Our jurisprudential rhetoric in this country is very fine about prison being a last resort. Guess what? If you’re a magistrate sitting in Lenora, there’s only one option: imprisonment. It’s imprisonment or nothing.

Prison is not the last resort; it is the only resort. She spoke to us very eloquently about how if you have a young Aboriginal person who’s been convicted of a drug abuse offence, all you have available to you in terms of resources is you can order that young Aboriginal person, whose first language will not be English, whose second language will not be English, whose third language may not be English, to engage in a course of telephone counselling with a counsellor in Perth. It is patently ridiculous. There are no resources available in these places to deliver basic justice. That’s what it comes to in terms of economic social rights in those sorts of environments.

What’s contested? There are questions about whether or not there should be a Commonwealth Human Rights Act which specifies some basic rights, where there is an interpretation clause which sets the limits on judges interpreting future Commonwealth laws consistent with those rights. And then the question about whether or not judges should have the power to strike down subordinate legislation which is inconsistent with such a human rights instrument. And finally, a question of whether or not a court should be in a situation where it is unable to interpret a new Commonwealth law consistent with those human rights, whether the should be able to issue what’s called a declaration of incompatibility to require the Parliament to look at the matter afresh.

Now, if you want one of my personal opinions, I’ll express it on declarations of incompatibility. We’ve heard all of the constitutional scholars at each other’s throats as to whether or not that would be constitutionally valid. For my own self – and I don’t pretend to speak for all of my committee, or for all of those who make submissions to us – but from my own point of view, I would say you’d really only want to consider something which was constitutionally watertight.

Consider the Al-Kateb case. You all know that case; the asylum seeker who could not get a visa and who could not go home. It was said that he would have to spend his life in detention because he couldn’t be sent back home. Parliament clearly hadn’t considered that particular case but the High Court, by four to three, said they had no option but to interpret the law in that fashion. What then would you want to happen as the next step? Some would want the High Court to be able to order in some way or to trigger a process whereby the Parliament would review that provision of the Migration Act.

For my own money, I say we’ve got a system of Senate committees; we’ve got a situation where usually the government doesn’t control the Senate. We have minor parties in the Senate. Why not simply, with your Senate Scrutiny of Bills Committee, have a process whereby a set number of members, say six or ten, could trigger the process and say, “Look, there’s been a decision by the high court in Al-Kateb which demonstrates that we as the Parliament have not adverted to this instance which results in a grievous human rights violation, we should look at this again.” There would then be a requirement for the Attorney or the minister for immigration to appear before the committee and put a submission. You respect the parliamentary sovereignty but you say there’s a need here in the light of the judicial decision for the Parliament to take some particular action.

These are the sorts of contested issues. What’s very revealing is that a lot of the submissions we’ve received, and I’d say from academics who ought to know better, take very little account of our federal state structure. And if you don’t read any other submissions, read the ones that have come from the governments of Victoria and the Government of New South Wales. Two Labor states – one pro-charter, one anti-charter. Even the Attorney General of the pro-charter state of Victoria, Rob Hulls, said to us, in effect: “Under no circumstances should any Commonwealth charter trespass on any state affair. It should be reserved purely to Commonwealth public authorities and to the review of Commonwealth legislation.”

Now there’ll be those who want greater human rights protection who bemoan this fact. It’s part of the political reality of what we contemporarily face in terms of this. Can we set up a situation where the Commonwealth could provide a model of itself as a legislator, as a public service and as the conductor of public authorities where you have full compliance with all human rights to which we subscribed and where in the hope that over time, you might attract other polities within the federation to participate? That then becomes a question for the future.