• Susan Ryan

23 February 2010A human rights act should remain a priority for the federal government, argues Susan Ryan

AN EXTENSIVE national consultation has taken place. A well supported and constructive report on the exercise, the Brennan Report, was submitted to government last September. Open debate continues among welfare providers, churches, legal bodies, and community voices of all kinds. We should be on the verge of achieving that very necessary reform, a human rights act for Australia. But we are not quite there.

While waiting for a government decision on Brennan’s recommendation for an act, opposition to this reasonable and practical reform grows increasingly hysterical, resorting to fear mongering and threats. Opposition based on brazen misrepresentation is uncritically amplified in some organs of the mainstream media, especially the Australian. False claims of death to democracy and worse are easily corrected, but real harm is caused by this fuss. The victims of human rights violations, whose improved well being is at the heart of the cause, are left out.

The disabled, mentally ill, homeless, some Indigenous and religious minorities in their dealings with the Commonwealth should not have their rights ignored or insulted. In immigration matters, nursing homes, Centrelink, education, employment or housing processes, this does happen. Parliament does not always get its laws right, and needs on occasion to take a second look. The bureaucracy can often – through lack of training, ignorance or intolerance – treat vulnerable people harshly. Where commonwealth functions such as immigration detention facilities are outsourced, mistreatment is more likely. Anyone in doubt that such mistreatment occurs should read the Brennan report and the many submissions on which it relies, at humanrightsconsultation.gov.au.

Not long ago, children in immigration detention were left for years without education, health care or any sense of safety. Unless other more generous countries accepted them, adults in severe distress could be detained indefinitely The High Court (see the Al Kateb case August 2004) found there were no powers to override the Immigration Act, under which these abuses were legal.

Two high profile incidents – an Australian citizen, Vivienne Solon, deported while gravely ill, and the permanent resident Cornelia Rau, jailed then put into immigration detention while mentally ill – drew the community’s attention to the need for better laws to protect vulnerable people. At this time also, rafts of anti-terrorism laws were rushed through our parliaments. Necessary to national security these may have been, but traditional freedoms were set aside without checks or balances. The bungled case of Dr Haneef, detained and wrongly accused as complicit in terrorism, exposed the problems. Accounts of mistreatment of old people in care, the disabled and some Indigenous people added to the concerns of many citizens.

The temperature around some of these matters is now lower. Changes to immigration processes under the Rudd government constitute real improvements. Funding for the homeless has increased. More public policy attention is paid to mental illness. But lower profile injustices to poor people, public housing tenants, and the disabled and old people continue. The devastation of remote indigenous communities is well documented and the suspension of the Racial Discrimination Act continues.

The need for a human rights act to protect the powerless against ill treatment by the state remains as urgent as ever. As we don’t have human rights protection in the Australian Constitution, and such a change has been ruled out, how can our Westminster system provide the much needed reform?

Years of relevant experience in similar legal systems – including Britain and New Zealand – and, at home, in the ACT and Victoria demonstrate beyond doubt that such a law enhances parliamentary processes. It can operate in keeping with the separation of powers and without shifting any new law making powers to judges.

Responding to the well developed arguments in favour of legislating for the protection of basic rights, and Labor’s strong history in this area, the Rudd government established the national consultation committee chaired by Frank Brennan SJ. In written and personal representations, around 40,000 individuals made their views known. This is by far the largest response ever to a government consultation with the people. Over 87 per cent favoured a human rights act. Independent research commissioned from Colmar Brunton by Brennan supported these findings. It showed that while most Australians feel their own rights are secure, many see the need for better protection for others, the vulnerable. The random telephone survey of 1200 persons turned up 57% in support of a law, 14% opposed and 30% undecided. The case is clearly made.

Yet arch conservative opponents threaten Rudd noisily that such a reform would spell electoral disaster. The Australian Christian Lobby claims that the proposal is really about gay marriage, more abortions and forcing church schools to employ people whose private lives conflict with conservative Christian teaching. The fact that none of this could happen under the Brennan model is obfuscated.
 
How would it work?

The rights proposed to be protected are those set out in the UN Convention on Civil and Political Rights, with some protection for the commitments in the Convention on Economic Social and Cultural Rights, all ratified decades ago by Australian governments. The Brennan model would apply these legislated human rights only to the commonwealth and its agents. Private bodies, such as churches, church schools and other NGOs would not be covered. Parliament retains all its powers. A change to the marriage act to allow same sex marriage would continue to rely on the will or the parliament, not on a charter or human rights act. The recent abortion law in Victoria was made by the parliament; it was not facilitated by the Victorian Charter of Rights.

In the Brennan model, the courts would get only the capacity to examine a commonwealth policy or law in relation to consistency with the rights legislated by parliament. If the court found inconsistency, parliament would look again at the matter, and decide as it saw fit. The effects of this process, where rights may have been transgressed, would be added scrutiny, more transparency, and more aware decision making by parliament. How do these effects amount to a threat to democracy or a dangerous usurpation of the parliament’s powers by judges? No rational answers are provided. Instead, lurid allegations continue and are regularly published in the Australian.

What is the real basis of this opposition? Why does it rely on untruths, asserting in print, from "unnamed" informants that the Rudd cabinet has already thrown out the human rights proposals, while the Attorney General states that this is not so? Surely such bullying of Rudd and his ministers will not succeed.

Nor will bullying and misrepresentation deter active citizens committed to improving social democracy. Opponents keep labelling human rights law advocates as elitist, unrepresentative and anti democratic. Taking tips from Sarah Palin, they attempt to diminish genuine and widespread community voices as coming from out of touch privileged minorities.

One rebuttal: the Australian Human Rights Group is a network of organisations actively pursuing a Brennan type reform. This network covers around 74 diverse organisations, ranging across ACOSS, the Uniting Church, the YWCA, and the Federation of Ethnic Communities Councils of Australia. It includes bodies that advocate for the disabled, welfare recipients, indigenous and the homeless. People represented by this network alone number in excess of 500,000.This is not a small number. As to the concerns being elitist, the network gets support from some of the most widely respected providers of services to the poor, such as the St Vincent de Paul Society and the Sisters of Mercy. As well, the case does attract current and former politicians, including a former Liberal prime minister, judges, lawyers, the primate of the Anglican Church and the head of the Uniting Church. Advocates for the reform are diverse and representative. The heavy handed dismissal of such people as “elites” is stupid as well as insulting.

Where does the matter stand?

Right now, we await a decision from the Rudd government as to how they wish to proceed. In the case of a government decision to legislate along the lines proposed by Brennan, it may be that an exposure draft bill would be released, to allow further comment and discussion before introducing a bill into the parliament. Such a move would have the great benefit of defining the government’s thinking on the possible coverage of such a measure and the processes by which the parliament could pursue its implementation. This clarification should reduce fear mongering about interference with church employment polices, or radical transference of parliament’s powers to the courts. The subsequent debate might be more informed and reasonable.
 
Advocates for a human rights act do want change. We want the growth of understanding and respect for basic human rights throughout government processes, laws and their implementation. We want effective tools for the better protection of vulnerable people against powerful government. We want our international commitments to the UN human rights conventions to mean something real here in Australia.

We believe that every individual has the right to dignity and that this right deserves protection in the law. The parliament is engrossed in many huge matters that affect the well being of all us now and in the future. The right to dignity deserves a place in there too. •

Susan Ryan is chair of the Australian Human Rights Group

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