By Adam Fletcher
Last week, Coalition members of the Commonwealth Parliament’s Joint Committee on Human Rights called for the Committee’s abolition. In scrutinising the potential effects of their government’s legislation on various groups, the MPs allege that the Committee has “‘elevate[d] the rights of deadbeat dads and child sex offenders’ while failing to consider the safety of the community.’
This call should be resoundingly repudiated by Australians who care about rights.
One reason for this is the fact that a parliamentary mechanism for human rights protection was the Coalition’s own preferred option after the 2008-09 National Human Rights Consultation. The Consultation recommended that there be a parliamentary scrutiny Committee and involvement by the courts by means of a Human Rights Act, but the ALP government of the day eventually agreed with the Coalition that such an Act would be a step too far. A rights scrutiny Committee, it was successfully argued, would be more in keeping with our constitutional traditions, and keep power over social policy firmly in the hands of Parliament and the executive while still doing something about Australia’s glaring shortfall in implementation measures for many of its international human rights obligations.
Another reason is that the comments made by the Coalition MPs, about prioritisation of the rights of ‘deadbeats’ and ‘offenders,’ and not passing the ‘pub test,’ are extremely selective. They overlook the Committee’s voluminous reports scrutinising in great detail all sorts of legislation which potentially affects all of our rights. From metadata retention (digital spying) to the continuing erosion of the presumption of innocence, from punitive Youth Allowance waiting periods to civil penalties (which would be considered criminal by international standards) in industrial relations and other legislation, the Committee has highlighted a huge range of potential rights issues in its 6 years of operation.
Yes, sometimes the issues concern the rights of unpopular groups, such as non-citizens whom the government wishes to deport away from their families, or those suspected of involvement in crime or even terrorism. In fact, this is where the Committee’s scrutiny is most valuable, because the rights of these groups are routinely overlooked in the national policy/legislative development process.
Imagine for a moment that you or someone you knew were accused of welfare fraud or ‘providing material support for terrorism’ – would you not want the legal processes involved to respect international fair trial standards? What if the government wished to intercept your communications, even if it had no real justification? Would you not want safeguards such as a warrant system and mandatory privacy considerations? These are the kinds of changes the Committee has frequently recommended to government over the past six years of its operation. I know because I have been studying its work since 2012.
Even though the Coalition had its way in the Human Rights Act debate, it appears some members will not be satisfied until human rights are removed from Australian public policy discourse entirely. Julian Leeser MP alleges that Australia’s human rights institutions have been ‘hijacked’ by activists. Putting aside the fact that this constitutes an unwarranted attack on hundreds of dedicated lawyers, social and policy officers in a range of worthy organisations, Leeser’s own party has the majority on the Joint Committee on Human Rights. It also has control over who is appointed as the Committee’s Legal Adviser, and determines when the Committee takes public submissions (it rarely does so compared with other Committees). It is therefore difficult to see how this claim could possibly apply to the Committee itself.
It is not the first time that Coalition members have sought to undermine the Committee. In November 2016, the Committee concluded that a draconian measure banning all future travel to Australia for refugees on Nauru and Manus Island was discriminatory and insufficiently justified. Coalition members issued a public statement after the report was tabled distancing themselves from it, saying ‘[t]he legal advice referred to in the report was not drafted by the Committee members and represents one opinion.’ Yet the whole point of this Committee is that its reports be dispassionate, bipartisan and reflect sound international legal advice from a respected adviser. Most of the advisers have been high level academics specialising in international law. The Committee is not meant to be a party-political vehicle for attacking legislation and producing sharply divided reporting like other parliamentary Committees. The scrutiny Committees are meant to be a breed apart, performing a technical role in informing the Parliament of potential deficiencies and risks in legislation. Former Chair Dean Smith is one of the few Coalition members to have understood and respected this role.
The ‘pub test,’ or compatibility with community standards, as Russell Broadbent puts it, seems to form the principal basis for our politicians’ assessment of new policy measures. Yet there are a great many instances in which the issues are too complex to be analysed in this fashion, and a point of view based on a less variable standard, such as universal human rights, is sorely needed in our national debate.
Professor Philip Alston, the current UN Special Rapporteur on Extreme Poverty and Human Rights, drew attention to this call to abolish the Committee in a speech at Melbourne Law School on 14 August. He noted with concern that conservatives in both the US and Australia are trying to control the narrative around the treatment of any number of minority groups, including welfare recipients, the homeless and asylum seekers, so that policies which affect them adversely (sometimes oppressively) will be accepted by a voting majority. Minimising human rights discourse in the national debate is one way in which they aim to achieve this.
I do not claim such insight into these particular politicians’ motives, but it fits with a pattern of attacking the Human Rights Commission and deriding critics of rights-infringing measures as ‘legal activists’, the ‘human rights industry’ (believe me, it shouldn’t be your first choice of career if money-making is your priority) and ‘moral poseurs’. For self-proclaimed champions of free speech, members of the current government seem very intent on delegitimising and shutting down this particular avenue of critique.
One of the findings of my research into the impact of the Joint Committee on Human Rights was that, since 2012, governments had only agreed to amend rights-infringing aspects of legislation a handful of times (8 between 2012 and 2016; 6 of which were under the previous ALP government). That is the real story about this Committee – the government is utterly dismissive of the mountain of work it has compiled on the compatibility of legislation with Australia’s international obligations. The government is simply not taking its obligations seriously, but that is no reason to shut the Committee down. Instead, it should have its mandate extended to be able to conduct wide-ranging inquiries like its UK counterpart), it should be consulted well before legislation reaches Parliament, and most of all its reports should be widely discussed in legislative debate (for now, they barely raise a blip on the Hansard radar).
Assuming we are not satisfied, as citizens in a mature, open democracy, to have our federal legislation assessed mainly using the ‘pub test,’ we should all support these kinds of strengthening reforms.
Adam Fletcher is a Lecturer of Law in the Graduate School of Business and Law at RMIT University and a former Policy Manager at the Castan Centre. Adam’s book Australia’s Human Rights Scrutiny Regime will be out with Melbourne University Press next month.
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