Egg in your face can be so satisfying

Sydney Morning Herald
9 October, 2009
By Richard Ackland

It is so gratifying to be found conspicuously incorrect. Journalists, in particular, relish being hung out to dry and this one is no exception.

It's the findings and recommendations of the Human Rights Consultation that are causing a bit of pain at the moment.

Last week in this space your columnist went for the line that Frank Brennan and his cohorts on the National Human Rights Consultation would squib the opportunity to come up with a ''dialogue'' version of a human rights bill.

That is the version that requires the courts and Parliament to bat back and forth their respective thinking on whether legislation is compatible with a regimen of civil and political rights. At the end of the process Parliament has the final say and can tell the courts to stick their findings and butt out.

Father Frank and his team's report came to hand yesterday and they have gone to considerable trouble to whip up the most elaborate egg concoction and toss it in my face.

Naturally, my feeling is one of disappointment combined with a modest amount of joy.

There are grounds to suspect that after reading last week's column the committee felt so ashamed they quickly rewrote the report to give everyone a ''fair go''.

What we have is a modest start to a human rights regime for this country, one of the few parliamentary democracies without such protections.

I've distilled that what is proposed is a two-tier human rights act to be accompanied by a pile of other worthy proposals, such as an audit of legislation to check its compatibility with prescribed rights protections, a program of education and the development of a ''human rights culture'', and a parliamentary oversight committee to review all bills for compliance.

This would affect only federal laws, public servants and administration and the envisaged regime would apply only to ''humans''. Rights for companion and farm animals, let alone vegetation, is a frontier still to be conquered.

The first tier of the legislation would consist of civil and political rights that are called ''non-derogable'' - shorthand for rights that are so bleeding obvious politicians should not be allowed to meddle with them.

They include the right to life (everyone has a right to life and there should be no death penalty); protection from torture and cruel, inhuman or degrading treatment; freedom from slavery or servitude; no retrospective criminal laws; no imprisonment for those unable to fulfil contractual obligations; and no coercion or restraint in relation to religion or belief.

It seems unlikely that anyone would have too deep an objection to any of these - except the former attorney-general Philip Ruddock did seem to suggest ages ago that a spot of torture-lite wasn't a bad idea for ''enemy combatants''.

The next tier are rights that can be limited or constrained by politicians. They include the great bundle of nitty-gritty rights around which the tensions undoubtedly will revolve - freedom of movement, privacy and reputation, peaceful assembly, freedom of association, due process in criminal proceedings, and the right to be compensated for wrongful conviction.

Others in this category are already well entrenched either by the constitution or other legislation - the right to vote, the right to freedom of thought, conscience and belief, and the right to marry and found a family.

There would be a few other rights tossed in as well, of the economic or social variety - the right to an adequate standard of living, including adequate food, clothing and housing; a highest attainable standard of health; and the right to education.

The idea is that individuals would be able to bring court actions to enforce their civil and political rights, but not their economic or social rights.

The usual remedies would apply. The courts could order injunctions against federal authorities and departments and award damages for breaches.

By this stage the fierce opponents of a bill of rights will be tearing their hair out, even if it is not all their own.

This includes Labor people such as the former premier Bob Carr and the present NSW Attorney-General John Hatzistergos, who became unusually emotive on the topic of human rights legislation.

Maybe it is no coincidence that they are among the politicians who have made singular contributions to stripping away citizens' rights, whether it be the right to fair compensation for injury or the increase in police powers and the diminution of due process.

You'll notice a few tiny omissions in the scheme Father Brennan's committee put forward. It has divined that ''most Australians would prefer Parliament to express the final view''. The ''hard issues'' such as same-sex marriage and abortion are neatly excised from the suggested model for a human rights bill.

As is invariably the way, there is a fallback position. Someone has to compile an interim list of rights for protection and promotion. It should include all the rights from the international covenants to which Australia is a signatory. Within two years the interim list should be replaced with a definitive list of Australia's human rights obligations. If the human rights act does not make it then at least, as Ko-Ko in [EM]The Mikado[/EM] says, we've ''got a little list'' on which to fall back.

One of the great leg-ups to the idea of an act based on the ''dialogue'' model was buried in one of the appendices.

It was legal advice from government lawyers Stephen Gageler and Henry Burmester to the effect that declarations of incompatibility under the human rights act could be validly made by judges and would be a proper exercise of judicial power.

Labor is divided on the issue of the legislation and most Liberals, as one would expect, are implacably opposed. One important step has been taken but the pathway ahead is littered with obstacles and uncertainty.

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