Frank Brennan, chair of the National Human Rights Consultation Committee, has revealed some details about the 500-page report handed to the Government last Wednesday.
Brennan, speaking at the 2009 Protecting Human Rights Conference on 2 October, said the case for and against a bill of human rights was canvassed in the report, which addressed a number of topics including declarations of incompatibility by courts, the political right of parliamentary review, the NT intervention and Indigenous issues and state government's retaining powers.
But Associate Professor Andrea Durbach, director of the Australian Human Rights Centre at the University of NSW, was critical of the terms of reference of the committee's inquiry - which excluded the possibility of a constitutionally entrenched bill of rights.
"Why has our response to the idea of a bill of rights been the insidious thinning and cropping of bold options which would offer an entrenched guarantee against rights incursions, to a predetermined narrow possibility of rights consideration, which, if adopted, would prioritise parliamentary sovereignty over rights protection and expansion?" she asked the conference.
"If the Rudd Government is to differentiate itself from its predecessors, it could do well to rise above the politics of gesture and take seriously the development of our rights dispensation. Its failure to trust the nation with an open mandate ... regrettably placed the legitimacy of the process at risk."
But Brennan hit back at Durbach, saying that the idea that a constitutional bill of rights would arise first was "simply fanciful".
"Even if you wanted a constitutional bill of rights in Australia - because we have a constitution that becomes so embedded, because you need a super popular majority - then the only sensible things these days is to have some form of statutory bill of rights where, eventually, you might move to a constitutional bill of rights," he said.
The report also covered substantive issues, such as education creating a culture of human rights and greater accountability of public servants, Brennan said.
"We think that one thing that is essential is, if you like, a brief education document which does list not only rights but also responsibilities. Another document which is essential, whether or not you have a human rights act, is that, given that we have sworn up to all these international human rights instruments, there has got to be a comprehensive document available ... not just [for] the ordinary person on the street [but] if there are sincere public servants who want to do their jobs - in terms of accountability [and] in terms of drafting bills," he said.
"Also we have made reference to the fact that there have been good experiments in places like the United Kingdom of education of primary school kids in relation to human rights and so we think that initiatives like that are worthwhile."
The report also addressed proposed alternatives such as giving the judiciary the power of statutory interpretation but with the final decision-making still being left with the legislature, he said.
Liberal Senator George Brandis, on behalf of the Federal Opposition, also called for a comprehensive audit of all existing Commonwealth legislation for human rights compliance and for an enhanced system of parliamentary scrutiny of future legislation in the submission.
Brennan said he thought the committee had done "the good spadework" on how this could be practically achieved.
He also revealed that, apart from comprehensive public consultations, he had had the opportunity to conduct high-level private meetings with senior bureaucrats from the ACT and Victoria, current and "most distinguished" retired judges and an interdepartmental Commonwealth committee.
- Sarah Sharples
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