President speech: NSW Young Lawyers

NSW Young Lawyers

Charter of Rights Conference

Opening Address

9 May 2009

The Hon Catherine Branson QC

President, Australian Human Rights Commission

I would like to begin by acknowledging the Gadigal People of the Eora Nation, the traditional owners of the land on which we meet, and pay my respect to their elders past and present.

Almost 7 years ago, a Bill of Rights conference not unlike this one, was convened, just next door at Parliament House. It was 21 June 2002 – the UK Human Rights Act had been in force for just under 2 years, the NSW Bill of Rights Inquiry Report had been tabled 8 months before, recommending against a Bill of Rights in any form, and the ACT Bill of Rights Inquiry was underway. It made sense to discuss the development of an Australian Bill of Rights.

The conference, according to one commentator, was ‘popular, informative, and timely’ but in focusing on what was the most appropriate model for a Bill of Rights, the conference was ‘putting the cart before the horse’.1 The question which needed to be addressed first was ‘how to achieve a level of political support that would guarantee the success of a Bill of Rights?’2 That question is just as, if not more, relevant today. The longer Australia stands out among Western liberal democracies by not having some form of human rights instrument, the more pressing the question becomes: how do we achieve a level of public understanding and support that would guarantee the success of an initiative at the Commonwealth level to introduce a Bill of Rights or a Charter of Rights (a Human Rights Act if you like) whatever the model?

The 2002 conference dedicated one session to political leadership and Bill of Rights issues. In that session, one speaker insightfully said that ‘we must question whether a Bill of Rights that does not enjoy general support in the Australian community would be of any worth…[A] Bill or Charter of Rights will be doomed to fail unless the Australian public regard it as being a document by and for them’.3

That speaker was the Honourable Robert McClelland MP, the then Shadow Attorney-General.

Mr McClelland has now shed the ‘Shadow’ from his title, stayed true to his word and announced a National Consultation on Human Rights. In so doing, Mr McClelland has sought to ensure that any Charter of Rights enacted in the foreseeable future will be one which the Australian public supports and regards as being ‘a document by and for them’.

Today, Macquarie Street is once again the venue for a gathering of people interested in exploring the possibilities for strengthening human rights protection in Australia. I would like to emphasise the word possibilities. Possibilities are not the same as theoretical options. We should accept, I think, that some options, even some attractive options, are not possibilities in the short to medium term future in Australia.  Comprehensive constitutional protection of human rights is an example of such an option that is not now a genuine possibility. The government has ruled it out and, in any event, there is no reason to believe that the Australian people would embrace it in the numbers necessary to carry a referendum. It would therefore be a pity, it seems to me, if those of us who support improved human rights protection in this country were to expend too much energy in arguing for a constitutional bill of rights. While it might theoretically be the best form of protection available, it is not presently practicably attainable. I, for one, would like the National Consultation to lead to real improvement in human rights protections in Australia. This is more likely to be achieved if those of us of like mind in this regard do not expend too much of our energies disputing with each other about models of protection.

I am hopeful that the National Consultation on Human Rights will encourage the Australian people to tell the government, via the Committee chaired by Father Frank Brennan, what they think about human rights protection in this country. My belief is that ordinary people in Australia are concerned about the high profile ways in which human rights have not been respected in our country in recent times. For this reason I am hopeful that the National Human Rights Consultation will lead to recommendations that include a comprehensive human rights instrument for Australia.

The Australian Human Rights Commission supports the adoption of a statutory charter of rights, that is, what we are referring to as a federal Human Rights Act. This would be an ordinary act of Parliament setting out rights like the right to life, the right not to be tortured or suffer other cruel or degrading treatment, the right to liberty and to be free from arbitrary arrest or detention, and other rights contained in the treaties to which Australia is a party. The Human Rights Act which we envisage would require bills tabled in Parliament to be accompanied by a statement of compatibility and it would impose upon Commonwealth public authorities an obligation to act compatibility with the human rights set out in the Act. The Act would require courts to interpret legislation, so far as it is possible to do so consistently with the purpose of the legislation, in a way that is consistent with the human rights set out in the Act. Where a court is not able to interpret legislation consistently with the rights in the Act, this ‘finding of inconsistency’ could be drawn to the attention of the Commonwealth Parliament, which would in turn be required to respond formally within a defined period.

Of course, the model which I have described is only one model for a statutory charter of rights. We at the Commission recognise that there may be other models which could work equally well.

However, as I have mentioned, a constitutionally entrenched bill of rights is not on the table; the terms of reference given to the National Consultation have made this clear. In light of this, I personally think that it would be sensible to concentrate our efforts on advocating for proposals to which the government is amenable. It would be sensible for us to recognise the National Consultation for what it is – a rare opportunity for us to bring home improved protection for rights to which Australia has already committed internationally. These rights were first set out in general terms in the Universal Declaration of Human Rights, an inspirational document which Australia played a part in drafting.

We proponents of a Charter of Rights (of whichever model) will need to persuade the public of three propositions if we are to gain their support:

• that rights are not adequately protected in Australia
• that to enhance human rights protection by means of a Charter of Rights will have an impact, and
• that the impact will be a positive one.

In recent times, Australia’s executive and legislature have by their conduct regrettably bolstered the case in support of the first proposition, namely that rights are not adequately protected in Australia. In recent times, the rule of law and the liberty of the individual have been hastily and disproportionately compromised in the name of national security. In recent times, the Australian government has been the subject of strong criticism for ‘the automatic and indiscriminate character’4 of its mandatory detention policy and for its failure to consult the Aboriginal people of the Northern Territory prior to the adoption of the Northern Territory Emergency Response measures.

For evidence that a Charter of Rights will have a positive impact, we need only look at the United Kingdom, the ACT and Victoria. Perhaps you heard about this year’s Victorian Equal Opportunity and Human Rights Commission Conference; it was a celebration of the positive impact that the Victorian Charter of Human Rights and Responsibilities has had on governance and public service delivery in that state. The Victorian Deputy Premier and Attorney-General Rob Hulls said in his opening address:

Not only is the human rights dialogue permeating all levels of Government, there has been a change in culture so that when laws are developed, decisions made or services delivered, they are done with the human rights and responsibilities of every Victorian in mind.5

In the ACT, Australia’s first Charter of Rights has produced many positive outcomes. It has been used to audit and improve adult correction facilities such as Belconnen Remand Centre and Symonston Temporary Remand Centre. After an audit of the former Quamby Juvenile Detention Centre, the ACT Government reopened it as an adult facility, to address overcrowding and potentially inhumane conditions at the Belconnen and Symonston centres.6 The lessons learnt from these audits have been applied to the new Bimberi Youth Justice Centre and the new Alexander Maconochie Centre,7 which became the first prison in the country to be designed and built in line with human rights principles.8

Now, perhaps more than ever before, there is incontrovertible, empirical evidence to support each of the three propositions of which the public must be persuaded in order to support the adoption of a Charter of Rights.  What remains to be done is to communicate that evidence in a way that the public finds persuasive. Those of us with a legal education are well-placed to do this. I therefore urge each of you to use your advocacy skills by writing a submission to the National Consultation on Human Rights. Let’s all make sure that our voices are heard, that they are persuasive and that their principal message is that we want a comprehensive human rights instrument for Australia.