Rudd’s 2010 challenge: an Australian Human Rights Act

Are Australians finally about to get the protection of a national human rights act? More than ever, we need it and are ready for it. We now have substantial evidence of community support and a publicly documented set of proposals showing how such an instrument could work effectively to protect the vulnerable. This measure would operate without technical problems within our existing parliamentary system, fully respecting our traditional separation of powers.

Late last year, Father Frank Brennan SJ submitted the report from his government appointed committee. They had consulted the community throughout 2009 on the need for better human rights protection including a possible new law. Brennan and his committee travelled all over Australia, including the most remote areas asking people the questions set for them by the Rudd Government. They held discussions with judges, legal bodies, welfare organisations of all kinds and churches. They commissioned comprehensive research. Concerns and objections raised by those in opposition were considered in depth and received full response. From written submissions and people attending forums the committee received the views of about 40,000 Australians, an unprecedented level of response for such an exercise. The overwhelming majority of those views favoured a human rights act.

Brennan carefully considered all of the matters such a legal instrument would involve and studied relevant overseas examples, including the UK Human Rights Act and the New Zealand law.

Finally, along with many sensible recommendations about community education and more parliamentary engagement, they recommended a human rights act.

The rights proposed to be protected were primarily the civil and political rights covered by the UN convention long since ratified by Australia, with some lesser protection for economic and cultural rights, also the subject of a UN instrument signed by preceding Australian governments. The elements of their proposal constitute a law to protect individuals against abuse of these particular rights by the commonwealth and its agents. States were left to consider their own approaches. Private organisations, such as schools and hospitals run by churches would not be covered. The Courts could determine that a law or action rising from a commonwealth policy was inconsistent with the rights legislated. In this case the matter would be reconsidered by parliament. The courts could not strike down an incompatible measure. Any changes to the law would be exclusively a matter for parliament.

This approach would put greater public focus on human rights and ensure that parliament in considering legislation always took human rights impacts into account. The executive in implementing laws would also be required to take human rights into account, a big advance on what happens now. Where parliament decided, say in a case of a threat to national security, to override any of the rights protected, they could do so. This decision would be clear and open, and the courts would have no role where parliament had made its intentions clear.

These proposals add up to a modest but effective approach to the legal protection of rights, an approach widely endorsed, including by the 72 diverse organisations that form the Australian Human Rights Network.

Such strong support together with a range of public opinion surveys available publicly suggest there is no danger of a significant electoral backlash against a moderate, well presented, properly targeted, human rights law reflecting the needs and wishes of Australians in 2010 and beyond.

As we await the official response from the Rudd government, there thus seems no good reason why Prime Minister Kevin Rudd would not take the next step and prepare a draft law along the lines proposed by Brennan, inviting further community input and early consideration by the parliament.

Given the evidence favouring a human rights law, and the substance of the Brennan report, it is surprising that a petition opposing such a measure has been sent to parliament. The petition was organised by the Australian Christian Lobby. This opposition is surprising in that the beneficiaries of a Brennan-type Act would be the marginalised of society: the disabled, the aged, the mentally ill, refugees, members of religious minorities and Indigenous. And freedom of religion would become a basic right protected by law. Protection of the vulnerable is properly a central concern of Christians and unsurprisingly, strong support has come from Christian bodies such as the St Vincent de Paul Society, the Sisters of Mercy and the Uniting Church.

But the ACL petition ignores the vulnerable and lists different concerns. The ACL website warns that a human rights law would be used by activists to attack freedom of religion, and advance same sex marriage and abortion. Ignoring the facts of Brennan, they present the proposed reform as damaging to our democracy. The ACL claims to have garnered support for their misleading interpretations from Cardinal George Pell and Bob Carr.

The ACL opposition in no way properly reflects how the proposed human rights act would work in practice. It overlooks the constitutional reality that parliament is always empowered to legislate in relation to the issues that worry them. If the commonwealth parliament wanted to legislate for same sex marriage next week, they could do so with or without a human rights act. In the case of abortion law, the Victorian parliament legislated without referring to the Victorian Charter of Rights. In drafting their Charter the Victorian parliament had deliberately excluded abortion from its coverage. Many ACL supporters were unhappy with the abortion law, but it was a law made democratically by their parliament, and not a product of their Charter of Rights. Parliament in relation to legislation is always supreme and the existence of human rights act would not change that.