Aug 18, 2003

Grievence Debate: Australian Human Rights Commission Legislation

GRIEVANCE DEBATE: Australian Human Rights Commission Legislation

18 August 2003

Mr ALBANESE (Grayndler) (5.51 p.m.) —Today I rise to comment on the Australian Human Rights Commission Legislation Bill 2003, which passed through the House in the early hours of the morning of 27 June 2003 in order to avoid proper scrutiny. Far from enhancing human rights protection, as the Attorney-General has claimed, the proposed changes to the commission undermine the foundations of the commission by, amongst other things, obliterating its independence and reducing the effectiveness of its structure by abolishing specialist commissioners. The government is taking a wrecking ball to Australia’s human rights body because it perceives the commission as a threat. For example, the manner in which asylum seekers are treated when they arrive in Australia is of great concern to many Australians.

Australia is clearly at a point in its history when human rights protection needs to be strengthened, not weakened. Australia as a whole has not yet learned from the mistakes of the past such that we can afford to dispense with or downgrade our independent protectors of human rights. Part of the government’s systematic razing of human rights protection in Australia was the Australian Human Rights Commission Legislation Bill 2003 that was carried through this House. Under the amendments, the commission will lose its independent power to intervene in court proceedings. The commission will then be required to obtain the permission of the Attorney-General in order to intervene in court proceedings in which the commission has an interest. But the Attorney-General has different interests to the commission. The Attorney-General is interested in keeping legitimate asylum seekers, including vulnerable children, locked up indefinitely in detention centres that are irreversibly detrimental to their development and their mental and physical wellbeing. Unlike the Attorney-General, the commission’s interests are in ensuring that the human rights of individuals and groups are protected and that Australia adheres to its international human rights obligations.

The Tampa has become a grim reminder of what could have been. Like the stolen generation and the White Australia Policy, the Tampa will haunt the Australian psyche forever. When I see follow-up television and newspaper stories on some of the refugees rescued by the Tampa who are living comfortably and safely in New Zealand, I am very happy for them. But I am also very sad for Australia because when Australia was really tested, given the opportunity to show its mettle and to do what was not only legally but also morally right, it failed. What a chance missed. Every Australian politician should read Dark Victory by Marian Wilkinson and David Marr, which outlines the deception and cynical manipulation of human beings by the Howard government.

But there was a government created body looking out for the human rights of the people on board the Tampa, doing what the government itself did not want to do and doing what most of the rest of the people of Australia were powerless to do. The Human Rights and Equal Opportunity Commission had the power to seek leave to intervene in the case in the Federal Court surrounding the Tampa crisis. The commission sought leave, and the court granted leave. Using its expertise in public and private international law, the commission was able to lay bare Australia’s obligations to the court and, incidentally, the people of Australia. It was the only official statutorily created body speaking out for the people on the Tampa. The commission argued very different and contradictory arguments to the government.

There was recently a Federal Court case involving Mr Al Masri, a Palestinian who was detained in `Chateau Woomera’. At the time it was thought that Mr Al Masri’s detention could possibly be indefinite while he waited to be returned to the Gaza Strip. The full Federal Court rejected a number of the government’s submissions because the acceptance of the government’s arguments would authorise arbitrary detention in contravention of the International Covenant on Civil and Political Rights to which Australia is a party. As submitted by the Human Rights and Equal Opportunity Commission, the full Federal Court found that the power to detain in section 196(1)(a) of the Migration Act `should be read … in conformity with Australia’s treaty obligations’. Just last week the High Court upheld this decision by refusing the federal government the right to appeal.

Not only is the commission the guiding light in Australia in its arguments for treating people with fundamental dignity and respect, but it also falls to the commission to keep Australia on the straight and narrow in relation to its international treaty obligations. Since 1986 the commission has sought to intervene in 35 cases and has been granted leave to intervene by the courts in all 35. In 18 of these 35 cases the Commonwealth was also a party to the proceedings. In 16 of the 18 cases in which the Commonwealth was also a party the commission submitted significantly different and conflicting arguments to those of the Commonwealth.

Aside from the obvious conflict of interest in the Attorney-General’s threshold interference in the commission’s power to intervene, there are other powerful arguments against the amendments proposed by the government. There is no evidence that the commission has ever abused its power to intervene. The commission’s own judgment in deciding whether it should seek leave to intervene in a court case has so far been faultless. The commission’s intervention has been of very valuable assistance to the courts. His Honour Chief Justice Nicholson of the Family Court of Australia in his submission to the Senate committee inquiry into the 1998 incarnation of this bill said the commission frequently makes submissions that are different to the Commonwealth—and helpfully different. He referred particularly to the case of B and B, involving the relocation interstate of a custodial parent.

As Bret Walker SC said in his submission to the Senate Legal and Constitutional Legislation Committee:

“… human rights which cannot be levelled against a Government except by the government’s permission do not really deserve that term; they should not be called human rights if they cannot be argued against the government, except with the government’s permission …”

Removing the power of the commission to intervene without the consent of the Attorney-General is against the Paris principles. The Paris principles were passed by a resolution of the UN General Assembly in 1993 and provide guidelines for the operation of national human rights bodies. One of the Paris principles is independence through operational autonomy. Clearly, the proposed `gatekeeper’ role of the Attorney-General compromises this independence.

More fundamentally, it is the role of the court to determine who may intervene in a matter before it, not the executive government of the day and/or another party to the litigation. Intervention by the commission is already subject to the court’s permission. In short, the Attorney-General wants to gag the commission because the commission has run embarrassing humanitarian arguments in court which are contrary to the politically motivated and ballot driven submissions that are the mainstay of this government, which specialises in wedge politics. There is no other explanation for the removal of the commission’s power.

The Human Rights Commission bill also proposes to replace the commission’s specialist commissioners by three generalist deputy presidents. The government, once it has finished demolishing the commission as it now stands, wants to replace it with a structure cemented with severely watered-down mortar. The proposal fails to take into account the practical benefits of specialist commissioners and their very important sym-bolic roles. Commissioner Jonas of the com-mission told the Senate Legal and Constitution Legislation Committee:

Specialist Commissioners with specialist expertise have so far been successful in tackling serious human rights issues in Australia and are respected as officers with extensive know-ledge and experience in socially complex issues. Changes can only bring confusion over roles and leave disadvantaged groups without an identified advocate.

The removal of the specialist commissioners will destroy high profile and successful advocacy in the areas of race, Indigenous affairs, disability and so on. In particular, an Aboriginal and Torres Strait Islander commissioner who is experienced in the community life of Aboriginal and Torres Strait Islander people is crucial in protecting the rights of Australia’s Indigenous people. Indeed, the specialist structure of the commission should be strengthened, not diluted, by introducing other specialist commissioners, such as a children’s rights commissioner.

The Attorney-General said in an article in the Australian Financial Review that the government is proud that Australia has a human rights record among the best in the world. I agree that Australia’s human rights record is among the best in the world. Australia has a good human rights record—except for our treatment of Indigenous people, our treatment of asylum seekers and our treatment of children in detention. The list of exceptions goes on. There should be no exceptions in the protection of human rights. As Dougie Heard from the Physical Disability Council of New South Wales has said:

“Human rights are a bit like pregnancy … you either have them or you don’t.”

It certainly is not the government that is intervening on behalf of the victims of human rights abuses, apart from the lucky few who took a number and waited patiently in the queue for the protection of their human rights. It is the Human Rights and Equal Opportunity Commission that is intervening to protect the rights of these individuals and groups. To take away the right of the commission to intervene and to dilute the special expertise of the specialist commissioners by replacing them with generalist deputy presidents is to diminish the great work that the commission has so far achieved and to prevent the commission from building on its already solid and proud foundation. Pastor Niemoeller, a victim of Hitler’s Nazis, said:

First they came for the Jews, and I did not speak out because I was not a Jew.

Then they came for the Communists, and I did not speak out because I was not a Communist.

Then they came for the Homosexuals, and I did not speak out because I was not a Homosexual.

Then they came for the Trade Unionists, and I did not speak out because I was not a Trade Unionist.

Then they came for me and there was no one left to speak for me.

In Australia in 2003, when there is no-one else to protect the human rights of individuals or groups, there is the commission which will speak out. There are clearly identifiable, empathetic, expert commissioners to speak out. The Sex Discrimination Commissioner, the Disability Discrimination Commissioner, the Aboriginal and Torres Strait Islander Commissioner will all speak out, along with the Race Discrimination Commissioner. As long as the Human Rights and Equal Opportunity Commission keeps the power and structure that it currently has, there will always be someone to speak out for individuals and groups whose human rights have been violated. Surely that is something that everyone in this parliament should support.