Fairness, Opportunity and Security.
Policy series edited by Michael Keating and John Menadue.
At the time of the recent death of Malcolm Fraser I remembered many of the high and low points of his public life. My best memory was of that cold Sydney evening on 5 October 2005 when he joined several hundred diverse citizens in the Sydney Town hall to launch a community campaign for a Human Rights Act for Australia.
At that point I, who as an ALP Senate candidate campaigned in my first federal election in December 1975 on the Shame Fraser Shame slogan, decided that Fraser had changed permanently and for the better. I believed Australians would change with him and would insist that our human rights be protected by a law of the federal parliament. I was a right about Fraser, but wrong about Australia.
Now ten years later, our basic human rights still have no statutory protection. Alone among the world’s democracies, Australia still lacks a Bill or Charter of Rights.
We came close. A handful of us, supported by online publication New Matilda, dismayed by the burgeoning anti-terrorism, sedition and refugee laws intruding on our basic rights decided that if parliament was ignoring the need for a new law to protect rights, we would not.
The Al Kateb case was our final spur to action. Al Kateb, an asylum seeker held in immigration detention because he lacked statehood documents, was facing permanent incarceration. The High Court found that despite Australia’s being a signatory to the UN Convention on Civil and Political Rights it could not override the Immigration law that kept him in prison. We needed a new statute to protect those rights embodied in international conventions but not able to be exercised without domestic statutes.
Without money or staff other than some support from New Matilda, we planned a national community discussion of the issues, and we carried it out. With extensive commitment of voluntary time, expertise and resources, we held meetings in all capital cities and some country towns. Distinguished legal academic Spencer Zifcak drafted a model bill that set out clearly and simply which rights would be protected and how. It proposed a limited and entirely traditional role for judges.
This model helped inform the public about what we intended and what such a law would mean to them. It attracted a lot of community support but after the change of government in 2007 we could not persuade the Labor government, or the then Coalition Opposition. Our work did influence the decision by AG Robert McClelland to set up a fully resourced national consultation on the protection of human rights. The government’s appointment of Frank Brennan SJ to chair this inquiry inspired hope that a Human Rights Act for Australia was not far off.
The Brennan consultation was wonderfully comprehensive. It elicited unprecedented support for the proposition that our rights needed statutory protection. To amplify the efforts of the Brennan exercise, our tiny new Matilda group joined forces with over 100 NGOs. With assistance from the Gilbert and Tobin Centre for Public law at UNSW we established a network focused on communication and advice to individuals and groups who wished to take part.
The ever-growing support for rights protection provoked vigorous and powerful opposition. Daily on the pages of The Australian newspaper, every critic of a rights law, the informed and courteous as well as the paranoid and ratbag, achieved prominent coverage. Opposition to a Rights Bill, like support for it, was bi partisan. Labor heavies, primarily Bob Carr expended massive time and energy inveighing against the idea of a law enacted by parliament that would involve some reference to the courts, as all our laws do. Despite the goodwill of McClelland, the Rudd government accepted the Brennan report and did nothing.
Of course our community supporters were deeply disappointed, and fearful of what was to come, especially in the treatment of asylum seekers.
Those fears were justified. The absence of statutory rights protections means the distressing circumstances that prevail in local and off shore detention facilities are in most aspects quite legal.
On the upside, we now have much stronger scrutiny of human rights in the federal parliament. Refugee advocates have had some wins in the High court. The community has a better grasp of what can happen when, without enforceable protections, freedom of movement, of speech, of belief, or rights to legal representation fall foul of current laws.
Next time, the campaign for a Human Rights Act for Australia will attract more supporters, even perhaps some from the ranks of our former opponents. I expect we will succeed.
Susan Ryan AO is a former Chair of the Human Rights Act for Australia Campaign.