Frank Brennan and Janet Albrechtsen: a contrast in style

Frank Brennan is a regular participant in public debate upon matters of high principle. Native title, treatment of asylum seekers or the Prime Minister lobbying the Pope on Sainthood for Mary MacKillop: Brennan’s voice is heard in public forums.

A feature of Frank Brennan’s advocacy, however, is the extent to which his contribution to debate is based on a close analysis of key facts and key documents. His book from some decades ago, Land Rights Queensland Style includes a close analysis of the Community Services (Aboriginals) Act of the time. His Tampering with Asylum has an introduction that starts with the Australian delegate’s contribution to a 1938 conference on Jewish Refugees in Switzerland. Chapter 1 commences with the definition of “refugee” from the 1951 Convention on Refugees. For all his concern with matters of principle, Frank Brennan eschews abstraction and rarely argues in a vacuum. This is a major strength of his contributions to public debate.

It is not surprising, then, that the report of the National Human Rights Consultation which was chaired by Brennan is carefully documented and contains a detailed analysis of the way legislation, the common law and international human rights instruments deal with human rights. Chapter 4, which discusses a possible Human Rights Act draws on the history of such proposals both old and recent; sets out an analysis of existing human rights statutes, both domestic and international; and discusses in detail arguments for and against the proposal.

A full chapter each is devoted to arguments for and against a Human Rights Act. Each chapter draws on submissions received by the Committee, especially, from leading proponents on both sides of the debate. The arguments appear, in each case, to be presented fairly. It is of interest that, at the end of each of the two chapters, a page is devoted to “countering” some of the arguments just presented. It appears as if there were some arguments on each side that the Committee thought were less convincing. Since the Committee ultimately recommended a Human Rights Act, it is informative to consider the anti-Act arguments which were “countered” by the Committee.

The Committee thought that the argument that a Human Rights Act would undermine Parliamentary sovereignty was “particularly weak in the case of a legislative (as opposed to a constitutional) charter of rights”.

The Committee also rejected arguments based on the failure of Human Rights Acts to prevent a deterioration in the rule of law in countries like Zimbabwe, pointing out that the strength of such legislation in countries like Australia is that it builds on already strong institutions.

The Committee gave short shrift to arguments that a Human Rights Act would stifle the protection of rights not mentioned, pointing out the flexibility of a statutory charter.

And the Committee pointed out that fears of excessive litigation were not supported by actual experience where such legislation had been introduced.

Those who had campaigned to convince the Committee not to recommend a Human Rights Act have now launched a campaign for the hearts and minds of the Attorney-General, Robert McClelland, and, more importantly, the Prime Minister, Kevin Rudd. Paul Kelly, George Brandis and columnist, Janet Albrechtsen, have been strident in their cris de coeur.

Ms Albrechtsen, in a column published in The Australian of October 14, has accused others of dishonesty. She accused advertising executive, Todd Sampson, of deliberate dishonesty in arguing in favour of strong action by Australia on climate change as a prelude to her assembling an argument that the Human Rights Act recommendation had been opposed by a majority of respondents to the Committee’s call for submissions despite their being some 27,888 respondents out of a total of 35,014 submissions received in favour of such an Act. Ms Albrechtsen gets to her result by disenfranchising any respondent who took the opportunity to make their submission by using the facilities provided by either GetUp or Amnesty International, organisations that campaigned in favour of some form of Human Rights Charter.

Ms Albrechtsen’s approach to the numbers game has a touch of Hamid Karzai about it: she counts the votes she wants to count.

Submissions by the public on any topic are, of course, an imperfect measure of public opinion as a whole on the subject. Sometimes, responses indicate strength of opinion and not the proportion of supporters or opponents in the community. The responses received in this case, however, were not only overwhelmingly in favour of an Act but also constituted “by far the largest response to a national consultation in Australia”. The fact that the two groups running campaigns received a large number of responses to forward to the Committee indicates that the campaign in favour of a Human Rights Act captured the imagination of a large section of the public.

The campaign against the Act during the Consultation process was far more strident and appeared to receive much more newspaper and other media space than did the campaign in favour.

Along with Ms Albrechtsen, Mr Kelly and Mr Brandis, repeated criticisms of the concept of a Human Rights Act appeared from Bob Carr, Chris Merritt (columnist), Andrew Bolt (columnist); politician, John Hatzistergos; and Professor James Allan. The Australian Christian Lobby also ran an apparently well-organised and well-financed campaign against the concept.

It is an equally valid approach (to Ms Albrechtsen’s “don’t count the votes against me approach”) to conclude that those who argued in favour of what became the Committee’s recommendation for a Human Rights Act for Australia struck a reverberating note with a lot of interested people. Despite the many column inches available to the opponents, their arguments sank with only flotsam to indicate they once existed.

Ed Coper, in the same edition of The Australian, argues convincingly that those who seek to invalidate the response of the public to the Consultation (and the overwhelming support for the concept of a Human Rights Act) have failed to realise how important new communications technology is in encouraging members of the public to become involved in public debate.

Ms Albrechtsen’s final casting of the die was to quote Frank Brennan as a critic of the Victorian Charter of Rights. The speech to which Ms Albrechtsen was referring may be accessed here. The speech did not criticise the Victorian Charter. Rather, it was an impassioned plea for the Charter to be implemented more effectively in the context of the imposition of an obligation (which Brennan opposed) in s.8(1)(b) of the Abortion Law Reform Act requiring doctors, conscientiously opposed to providing abortions, to refer patients wanting an abortion to another doctor who did not have the conscientious objection.

Ms Albrechtsen may have understood this better if she had read either the speech or the Report of the National Human Rights Consultation. At page 49 of the Report, after discussing concerns expressed to the Consultation about the doctors’ conscientious objection issue, the Committee says: “Despite the strong concerns religious groups expressed in relation to these three matters, it is arguable that the Victorian charter did not give rise to any of these problems, uncertainties or disputes for religious Victorians. Faithful application of the charter might even help protect the right to freedom of thought, conscience, religion and belief, which is provided for in the charter.”