Prosperity with purpose - a fresh approach to some unfinished business

New Matilda’s draft “Human Rights Act” (“the Act”) project is, in this context, a welcome initiative. It is, however, one that continues to falter, not just because it emerges from such a narrow base, subscribers to an e-zine, but because its premises are themselves faulty.

While the Act’s preamble and objects describe an intent to “respect, protect and promote” human rights, the weakness of its protections means that human rights are really only acknowledged, not protected. At best, their protection is encouraged. While human rights may well be respected and promoted through this Act, any meaningful - or effective - protection is not afforded against other legislation that is incompatible with the Act.

The Act provides mechanisms to assist parliament in considering - or even reconsidering - the implications of legislation, but do not require that parliament ensures that legislation adheres to the various human rights protections it purports to have established.

The attorney-general would be obliged only to assess legislation and report to parliament in respect of its compatibility - or incompatibility - with the Act, with a joint parliamentary standing committee to review, consider and report on matters arising from the Act. Any failure to comply with respect to the attorney-general’s compatibility statements or with respect to the joint committee’s reporting obligations does not affect the validity of any Commonwealth law. This means that even these weak provisions are not binding. Nor is there any incentive on the part of government or parliament to ensure that any proposed legislation meets the human rights provisions under this Act.

Courts would only be required to interpret legislation in ways that are compatible with human rights “so far as it is possible” and the validity of any incompatible legislation would remain unaffected.

One of the objects is to provide for a just and appropriate remedy where a public authority - such as a Commonwealth government authority - has infringed an individual’s human rights. However, the Act indicates that any remedy would only apply to an action (or proposed action) that is unlawful. Given that parliament is not compelled to ensure that it passes legislation compatible with the Act, it is possible that such an action (or proposed action) may well infringe human rights under this Act and may nevertheless be entirely lawful.

Certain acts or failures to act by public authorities are rendered unlawful, but not if the authority relies on primary legislation to argue that it could not have acted differently.

Nor does New Matilda look at the contemporary practice of “extraterritorialising” human rights abuse. Its Act purports to protect the rights of everyone within Australia’s jurisdiction. What about detainees held by Australia in other jurisdictions, such as Nauru? What about Australians overseas - such as AFP officers - performing duties outside its jurisdiction? What about in international waters remembering, for example, the Tampa incident? One must also look to the current practice of excluding parts of Australia from application of laws, or excluding “aliens” from basic standards made for citizens.

Despite its flaws, there are some who support the New Matilda initiative because it is there. With various human rights violations going unchecked, the old Yes Prime Minister logic is attractive: “Something must be done. This is something. Therefore we must do it.”

In certain circles, it is almost impolite to say that one would be disappointed if this human rights act in its current form were ever to see the light of legislative day. But it nevertheless would be disappointing because the Act fails, in material respects, to do what it purports to achieve. It fails to provide effective human rights protection in Australia.

As many opponents of such legislative human rights protections point out, for most Australians, there is little need for them. This Act may indeed work for most Australians, but that simply misses the point. Human rights protections are measured most importantly by what they offer those whose rights are neither popular nor mainstream. In essence, a Human Rights Act should be a means by which a set of standards is established, and from which flows judicial review. It should provide remedies and protections when executive government or legislators find it convenient or popular to abandon such standards.

In relying on governments to act honourably and take into account human rights protections when they do not have to, we must address the real dilemma that arises when such protections are seen to be unpopular, if not irrelevant. And it is precisely because people are marginalised and different that their human rights require protection. Otherness - difference - accounts for many of those in our society most urgently requiring human rights protections including Indigenous Australians, refugees, disabled people, gays and lesbians and people who hold unpopular or little understood religious beliefs.