Durbach, Andrea --- "A Missed Opportunity: The Foregone Conclusion of a National Human Rights Consultation" [2010] IndigLawB 13; (2010) 7(17) Indigenous Law Bulletin 21
A Missed Opportunity: The Foregone Conclusion of a National Human Rights Consultation
Andrea Durbach
This article was presented as a paper to the ‘Protecting Human Rights Conference’[•] held at the Art Gallery of New South Wales on 2 October 2009.
The National Human Rights Consultation Report was delivered to the Federal Attorney-General, the Hon Robert McClelland MP on 30 September, 2009. The Attorney-General released the Report on 8 October 2009 and the Government issued its response on 21 April 2010.
In a speech delivered to a forum in Sydney in November 2008 entitled Human Rights under a Rudd Labor Government – What will be different?,[1] Attorney-General Robert McClelland announced the establishment of the National Consultation on Human Rights. He stated that:
The Rudd Government’s view is that how best to protect and recognise human rights and responsibilities is a question of such importance that it’s appropriate that we first seek the views of the Australian people.
And he concluded by saying that the consultation ‘will have no outcome pre-supposed’.
While perhaps no pre-supposed outcome was anticipated in November 2008, the Government’s subsequent terms of reference for the National Human Rights Consultation Committee (‘the Committee’) specifically refused contemplation of a constitutionally entrenched bill of rights or any form of rights protection that failed to ‘preserve the sovereignty of the Parliament’.[2] ‘It is ironic’, writes Geoffrey Robertson in his book The Statute of Liberty, ‘that a “national consultation” should from the outset refuse to consider the one system that demonstrably works. …The most successful method of promoting human rights was not placed on [the Committee’s] agenda.’[3]
Five years ago in the case of Al Kateb v Godwin, Justice Michael McHugh said that ‘(i)f Australia is to have a Bill of Rights it must be done in the constitutional way – hard though its achievement may be – by persuading the people to amend the Constitution by inserting such a Bill.’[4]
If indeed the recognition of human rights is, according to the Rudd Labor Government, of such importance, why is it that a nation which led the world in shaping the most important universal commitment to human rights over 60 years ago – hard though that achievement may have been - has been so reticent in persuading and leading its own people towards an acceptance of the most successful and significant method of promoting human rights?
What is it about our nation, one evidently built on principles of egalitarianism, tolerance and the famous ‘fair go’, a nation which now seeks to lead once again on issues of critical importance to the security of humanity and the global protection of human rights,[5] that we cannot conceive of a comprehensive and enduring domestic declaration of rights protection? As a strong democracy, we can afford to be generous and move beyond the mean insularity endemic to the Howard era. Yet we seem to have retreated to an ambivalent timidity at best, and a base antagonism at worst, which have combined to ultimately reject a robust commitment to protecting the rights of all who seek ‘a fair go’ in our ‘relaxed and comfortable’[6] country.
Why has our response to the idea of a bill of rights been confined to the insidious thinning and cropping of bold options – which would offer an entrenched guarantee against rights incursions – in favour of a pre-determined, narrow possibility of rights consideration which, even if adopted, would prioritise parliamentary sovereignty over rights protection and expansion?
The consultation arose at a time when various contemporary models of rights protection in Canada, New Zealand, Hong Kong, the United Kingdom and South Africa – and domestically, in the ACT and Victoria – had been sufficiently tested to illustrate lessons upon which to build an effective response to our own failures and deficiencies. Yet what the consultation pre-supposed was a model that fell behind rights developments in the democratic world and stopped short of the opportunity to stamp our vision for Australia onto our country’s primary instrument of governance, our key contract between generations.
In structuring the consultation as a qualified invitation – rather than as a timely commitment to renewing and rewriting the relationship between the private and the public realm - much of the debate about a bill of rights for Australia (academic and otherwise) has been reduced to a focus on the ‘dialogue’ model, its detailed permutations and questionable constitutionality, and a fixation on the myth that unelected judges would usurp the role of elected politicians. This narrow focus has led to the regrettable exclusion, in the main, of the ideas and imagination which might shape our contribution to rebuilding a unique constitutional settlement for our generation and beyond. This, in the words of former South African constitutional court judge, Albie Sachs, has had the effect of turning the debate on a bill of rights inside out.[7] The chance for our nation to take a confident stride towards implementing a magnanimous act has been suspended and turned inward to serve political expediency and conservative claims.
The national consultation process was neither greeted nor cultivated by our Prime Minister. Hesitant rights punters might argue that it was correct that the Prime Minister let the people speak without any undue influence from his office. But the formulation and subsequent execution of the consultation process was exactly the time when influence from our leader was due. It was a time when our nation was emerging from a period of damaging and far-reaching erosion of rights and contamination of institutions. This period presented a critical moment in our political development when a bill of rights, again to quote Albie Sachs, should have been ‘considered necessary’,[8] and when civic support and momentum could have been garnered to design a product of our history for our future. It was an opportunity for our political leaders to expand our rights in keeping with contemporary democracies rather than confine their sphere to a rote exchange between two often antagonistic arms of government.
To its credit and that of its warriors, the national consultation attracted tens of thousands of submissions, including some international contributions and a cache of postcards. Many of these pointed to the inadequacies in the present system and offered proposals for remedy. This investment from civil society was significant: it signaled to Government a respectable degree of readiness to engage in the negotiation of our nation’s most fundamental expression of our core principles, values and democratic aspirations.
But the starting point for the negotiation has meant that the opportunity to develop an authentic bill of rights has been undermined by executive stipulation and, inevitably, any document that emerges from this process will be unrepresentative (in all senses) and burdened by compromise and short-term arrangements. What is likely to emerge is a ‘deal document’ that overwhelmingly panders to pragmatism and conservative spin. Such a process will risk an outcome that is procedurally clumsy and wanting in substance.
If the Rudd Government is to differentiate itself from its predecessors, it could do well to rise above the politics of gesture and take seriously the development of our rights dispensation. Its failure to trust the nation with an open mandate, and simultaneously prepare the ground and lead us towards the mature evolution of our democracy, has regrettably placed the legitimacy of the process at risk. To return to the initial promise from our Attorney-General: what could be different about human rights under a Rudd Labor Government is that its deliberations about the national manifestation of rights, currently stuck in an abstracted legal clench, are expanded and imbued with the historical and moral considerations necessary to construct the rich fabric with which to line our contemporary, authentic and enduring Great Charter.
Postscript
The National Human Rights Consultation Report recommended, inter alia, that Australia adopt a federal Human Rights Act based on the ‘dialogue’ model (Recommendations 18 and 19). The Consultation Committee recommended that economic and social rights, if ‘listed’ in the Act, should not be justiciable (Recommendation 22). It further stated that the Act contain ‘a more restrictive interpretative provision’ than that applicable to the UK Human Rights Act, with federal legislation to be interpreted in a manner ‘compatible with the human rights expressed in the Act and consistent with parliament’s purpose in enacting the legislation’ (Recommendation 28).
Recommendation 29 curiously provided that ‘any federal Human Rights Act extend only to the High Court the power to make a declaration of incompatibility’, adding that
(s)hould this recommendation prove impractical, the Committee recommends alternatively that any federal Human Rights Act not extend to courts the formal power to make a declaration of incompatibility.
The Committee finally recommended that, under the proposed Act, individuals can initiate legal proceedings ‘against a federal public authority for breach of human rights’ with courts providing ‘the usual suite of remedies’ (Recommendation 31).[9]
On 21 April 2010, the Rudd Government announced its response to the National Human Rights Consultation Report. In rejecting the adoption of a Human Rights Act for Australia and opting instead for the implementation of a ‘Human Rights Framework’, the Federal Attorney-General said that:
a legislative charter of rights is not included in the Framework as the Government believes that the enhancement of human rights should be done in a way that, as far as possible, unites rather than divides our community.[10]
Under the Human Rights Framework, the Government undertakes to implement certain measures, many of which currently pertain. The Framework emphasises the Government’s renewed commitment to Australia’s human rights obligations, investment in human rights educational initiatives (some importantly directed towards the Australian Public Service), enhanced engagement in domestic and international human rights issues, increased broad community respect for human rights principles and improved human rights protections.
The Framework’s innovations are evident in the area of human rights protection with the planned establishment of a Parliamentary Joint Committee on Human Rights to scrutinise legislation for international human rights compliance and the requirement that statements of compatibility with international human rights obligations accompany new legislation introduced into Parliament. The Framework also envisages the introduction of national equality legislation, combining often overlapping federal anti-discrimination laws into a single Act.
The Rudd Government, if it retains power, has undertaken to review the impact of the Framework in 2014.
Andrea Durbach is Associate Professor and Director of the Australian Human Rights Centre, Faculty of Law, University of New South Wales.
[•] The conference was organised by the Gilbert + Tobin Centre of Public Law, UNSW, the Centre for Comparative Constitutional Studies, Melbourne Law School, University of Melbourne and the Human Rights Act Project, Regulatory Institutions Network (RegNet), ANU.
[1] Speech delivered to the Banks/Barton FEC RegionalForum, South Hurstville RSL on 17 November 2008, at <http://www.attorneygeneral.gov.au/www/ministers/RobertMc.nsf/Page/Speeches_2008_17November2008-HumanRightsUnderaRuddLaborGovernment-Whatwillbedifferent> .
[2] Terms of Reference, National Human Rights Consultation at <http://www.humanrightsconsultation.gov.au/www/nhrcc/nhrcc.nsf/Page/Terms_of_Reference> .
[3] Geoffrey Robertson, The Statute of Liberty - How Australians Can Take Back their Rights(2009) 216-217.
[4] [2004] HCA 37, para 73.
[5] ‘Rudd Pushes for UN Security Council Seat', ABC Radio – AM, 31 March, 2008 at <http://www.abc.net.au/am/content/2008/s2203138.htm> .
[6] John Howard in edited transcript of an interview with Liz Jackson, ‘An Average Australian Bloke,’ Four Corners, ABC Television, 19 February 1996 at <http://www.abc.net.au/4corners/content/2004/s1212701.htm> .
[7] Albie Sachs, ‘Towards a Bill of Rights for a Democratic South Africa’, 35 Journal of African Law, 1991, 24.
[8] Ibid, 30.
[9] The Federal Government National Human Rights Consultation Website at <http://www.humanrightsconsultation.gov.au/www/nhrcc/nhrcc.nsf/Page/Report_NationalHumanRightsConsultationReport-Recommendations> .
[10] The Hon Robert McClelland MP, Attorney-General for Australia, ‘Address to the National Press Club of Australia - Launch of Australia’s Human Rights Framework’, Canberra, 21 April 2010 at <http://www.attorneygeneral.gov.au/www/ministers/mcclelland.nsf/Page/Speeches_2010_21April2010-AddresstotheNationalPressClubofAustralia-LaunchofAustraliasHumanRightsFramework> .