GREENS BILL: Charter of Human Rights

Today Mark introduced a Greens Private Members Bill for a Charter of Human Rights for South Australians.


The Hon. M.C. PARNELL:

In a time in which political discourse has become increasingly polarised, this bill is a reminder that no matter how much we may argue about the minutiae of issues in this chamber or in the other place, there are some inalienable rights and some self-evident truths which unite us in our democracy. For example:

  • all votes should be counted;
  • everyone has the right to enjoy the highest attainable standard of physical and mental health;
  • everyone deserves to age with dignity and to be free from abuse and mistreatment;
  • every child has the right to an education and to be free from abuse;
  • imprisonment should be a last resort and only come after a fair hearing in an open court; and
  • Australians have the right to live and work in a safe, clean and healthy environment.

Members of parliament and the voters who have elected us may disagree on how best to achieve these goals and sometimes politicians, corporations and individuals will ignore or stray from these ideals. Nevertheless, I believe that the bill that I present to the parliament today is a model, a framework if you like, for the type of community that we would all like to live in; in other words, a socially cohesive harbour where boats of all types are lifted by a rising tide of shared values.

This bill and the bodies created by it can serve as an independent umpire, an impartial but watchful eye over our Public Service and our citizens, as well as an educational tool for our children; that is, the education would be: that is who we are and this is what we believe in. The protection of human rights is a fundamental component of the expansive conception of one of our nation's founding doctrines, that is, the rule of law.

In 2017, former Chief Justice of the High Court, the Hon. Robert French AC, stated that the rule of law provides societal infrastructure that gives shape and definition to Australia as a particular kind of society in the global community of nations. I know that some may think that in this lucky country, this First World nation, we only need to focus on our First World problems and that human rights protections are a concern for people who live 'over there' but not in Australia.

However, whilst many other countries treat their citizens worse than do we, we must remain forever vigilant in protecting our rights and freedoms, because when the veneer of civil society is chipped away, when our divisions are allowed to fester and our cherished shared values are not taught or enshrined in legislation, we can become a community divided. As Abraham Lincoln famously stated, 'A house divided against itself cannot stand.'

So what are these shared values? In this bill, in part 3, I have outlined the rights I hope we should all be able to agree on. These are set out in clauses 9 to 34 of the bill, and with one exception these are all rights that are in alignment with this country's international obligations under the seven core human rights treaties. The only additional right I have included is the right to a healthy and sustainable environment, which I will discuss separately in a while. The international treaties and conventions to which Australia has committed include:

  • the Convention on the Elimination of all forms of Racial Discrimination;
  • the International Covenant on Civil and Political Rights;
  • the International Covenant on Economic, Social and Cultural Rights;
  • the Convention on the Elimination of All Forms of Discrimination against Women;
  • the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment;
  • the Convention on the Rights of the Child; and
  • the Convention on the Rights of Persons with Disabilities.

Despite Australia voting against it originally, there is now growing support for the Declaration on the Rights of Indigenous People, including support in corporate Australia. The signing and ratification of human rights treaties is only a first step. Once we have committed to obligations, according to the Law Council of Australia, we must respect, protect and fulfil them. This legislation in its operation will assist in achieving those three goals.

In relation to the right to a clean and healthy environment, this is entrenched in the constitutions of many nations around the world. In fact, according to renowned environmental lawyer, David R. Boyd, in his 2011 Global Study of Constitutions, Human Rights and the Environment, entitled The Environmental Rights Revolution, Australia is one of only 15 nations worldwide to not include this right in its constitution.

To paraphrase J.R.R. Tolkien, a healthy environment is the one right that rules all others or, to use Latin legalese, it is the sine qua non, the essential element upon which all other rights depend. Without a healthy environment, there is no healthy life or, at the extreme, no life at all. Without human life there are no human rights. This is logic that has already been accepted by Australian courtrooms, and I will discuss that in a moment.

Part 3 of the bill is where the rights are listed, and it is based on the Victorian Charter of Human Rights and Responsibilities, which was agreed to 14 years ago when Victoria became the first state and the second jurisdiction in Australia, after the ACT, to adopt such a charter. The bulk of this legislation is based on the Victorian legislation. However, there are some important additions to this bill that are not in the Victorian act. These include the right to adequate housing; the right to the enjoyment of the highest attainable standard of physical and mental health; the right to a healthy and sustainable environment; the right to education; and the right to enjoy economic, social, cultural, civil and political rights.

It should also be noted, though, that clause 3 of my bill adopts the Queensland phrasing, which resolved statutory interpretation ambiguities that were identified in the 2011 High Court case involving the Victorian charter, and that is the case of Momcilovic v The Queen [2011] HCA 34. Queensland is relevant because, since the passage of the Victorian charter, Queensland has now joined with their own Human Rights Act, and that happened in 2019.

Ideally, we would have a national approach, but this is not happening, which is why states are separately legislating. However, I do support organisations such as the Law Council of Australia and the Human Rights Law Centre, which continue to push for a national charter of rights. In the meantime, state and territory-based legislation is the best way to enshrine these rights in law.

As things stand, only a handful of rights are implicitly enshrined in our federal constitution, with others, such as the freedom of political communication, found to exist implicitly according to the High Court and these rights are not well understood. As Law Council of Australia President Pauline Wright recently noted at the National Press Club, the COVID pandemic has highlighted the importance of basic human rights that many of us have taken for granted. She said:

Our constitution protects very few rights, and those rights which have been so hotly debated during the pandemic are backed by few constitutional or statutory guarantees.

A human rights charter will assist public acceptance of government decision-making processes—including for decisions which must be made against rapidly unfolding circumstances such as seen during the pandemic.

She further argued that a federal human rights charter would even benefit the government's metaphorical hip pocket or the budget bottom line by, in the words of Public Service journal The Mandarin, 'curbing the systemic need' for royal commissions into social justice failures in Australia.

While a national charter is a goal to aspire to and a worthy campaign to get behind, our vulnerable communities cannot wait. South Australia has had the Nyland and the Mullighan royal commissions in the last 20 years into child abuse, as well as the Oakden ICAC inquiry into our aged-care sector and the terrible systemic failures within the disability care sector that were recently made apparent by the appalling death of Ann Marie Smith.

It is time that South Australia, a state that was ahead of its time when granting the right to vote for women, a state that was ahead of its time during the Dunstan era, gets with the times and joins Victoria, the ACT and Queensland in passing a charter of rights. The experiences interstate have demonstrated that a charter of rights does not lead to a 'lawyers' picnic' as many fearmongers often claim.

In 2012, a report by the Human Rights Law Centre into the first five years of the Victorian legislation found that the act's influence was often felt outside the courtroom. The report, according to the Law Council of Australia, found that much of its impact was 'through government policies, local council projects or the affording of protected rights to vulnerable individuals and groups.'

Some examples of vulnerable individuals protected by the Victorian charter include a 40-year-old man with a disability living in an aged-care home who was able to assert his right to live in more suitable accommodation, or a 96-year-old woman who was granted extra time to find a new residence after receiving an eviction notice, or children in custody who had previously been transferred to adult facilities.

Meanwhile, the five-yearly review in the ACT, conducted by the Australian National University, similarly touted the extrajudicial impact of the legislation, stating:

…impact on policy-making and legislative processes has been more extensive and arguably more important than its impact in the courts. Its main effects have been on the legislature and the executive, fostering a lively, if sometimes fragile, human rights culture within government. While it has not attracted extensive public attention, and its workings have not always been apparent to the broader community, the [ACT Act] has operated in subtle ways to enhance the standing of human rights in the ACT.

One of the clearest effects of the [ACT Act] has been to improve the quality of law-making in the Territory, to ensure that human rights concerns are given due consideration in the framing of new legislation and policy.

These improved laws are likely to have tangible benefits over the longer term, particularly in the form of additional safeguards for vulnerable individuals in the community.

This bill, under part 4, clause 29, will similarly require every member who introduces new legislation before this house to prepare a statement which details whether the bill is compatible with the rights contained within the charter and if they are not compatible, the extent of the incompatibility. Provisions similar to clause 29 exist in Victoria, the ACT, New Zealand and the UK.

Under clause 31, every new bill will be referred to the Legislative Review Committee, which will then report to each house whether the bill is incompatible with human rights. While some human rights are absolute and no degree of incompatibility is accepted, others may be limited when there is just cause.

Part 4 of the bill will ensure that we have the discussions about how far we are willing to go to restrict or curtail our rights and freedoms from the outset, and in the event that the parliament believes there is sufficient cause to override this charter there is the power to do so under division 2, clause 32.

When introducing the bill upon which this bill is based into the Victorian parliament, the then Attorney-General Rob Hulls stated the override provision should only be exercised in:

…exceptional circumstances that may include threats to national security or a state of emergency which threatens the safety, security and welfare of people in Victoria.

We have just lived through a time, for example, where our rights to assemble and move freely have been curtailed because of the coronavirus pandemic. There are times where exceptions must be made, but it is incumbent on us to be transparent about the justifications.

This override cannot be permanent, though under clause 32 of the bill any such declaration expires on its fifth anniversary of the day on which it came into operation or such earlier date as has been specified in the act. Exceptional circumstances are exceptional because they do not generally last forever. Normality resumes, at least for a while. If the exceptional times return, a declaration can be re-enacted under clause 32.

While the interstate experience has been that the legislation's predominant impact has been outside the courtroom, part 4, division 3 does provide that courts should, as far as possible, interpret statutory provisions in a way that is compatible with human rights under clause 33 and for the referral to the Supreme Court of questions of law regarding the application of the charter compatibility of statutory provisions to the charter under clause 34.

In Queensland, judicial statutory interpretation of compatibility with human rights has recently occurred in the case of Youth Verdict and Waratah Coal, with the Land Court of Queensland accepting that it is obliged to consider human rights, such as the right to life, when assessing mining lease applications.

It must be noted that this bill will not allow the courts to rule that legislation is invalid because it is incompatible with human rights. The courts may, however, issue a declaration of inconsistency under clause 37, which will give the parliament the opportunity to reconsider and amend the legislation in question. The parliament, however, remains sovereign.

Under clause 38, within six months of any declaration of inconsistent interpretation, the minister responsible for the inconsistent legislation must prepare a statement responding to the declaration, which must be tabled before both houses and published in the Gazette. This aligns with the Westminster system of responsible government.

The use of international law obligations to aid in statutory interpretation is not a new phenomenon. The Teoh case in the High Court was a landmark example 25 years ago. This bill simply formalises and provides guidance for our courts and our public servants. Part 5 of the bill clarifies the role of the equal opportunity and human rights commissioners' functions and powers and the circumstances in which they can intervene, while part 6 of the bill provides for the charter's review after four and eight years.

As experiences interstate have shown, although we are a prosperous nation with a transparent democracy, it took a charter of rights to prevent the elderly from being turfed out onto the street with nowhere to go. It took a charter of rights to force the prison system to find age-appropriate facilities for young offenders and to force the disability services sector to find age-appropriate accommodation for a young man living with a disability. It took a charter of rights to allow the Land Court to consider the existential threat of climate change when assessing mining leases.

This bill is about preventing the vulnerable and the voiceless from falling through the cracks. I commend the bill to the council.