A chat about Australia's Human Rights Act campaign

Q: Many Australians are now aware that New Matilda has launched a national campaign to introduce a human rights act in Australia. What stage is the campaign at now and in what direction is it heading?

A: Well, following the release of the draft Human Rights Bill last October New Matilda has been and is in the middle of undertaking consultation with the community. This will continue until I guess the end of June and then in July we’ll start to refine the Human Rights bill based on the feed back we’ve been receiving. We plan to release the final version at the launch in Melbourne – in mid August – which will be a very large event – and which will symbolize the beginning of the next stage of the campaign – the advocacy phase.

The advocacy phase is when we’ll begin lobbying members of Parliament in Canberra and since it will be coming to the end of the year we will be trying to raise the profile of the campaign, with the objective of having the final Bill tabled and debated in Parliament in December 2006.

We do realise that there are some obstacles in our way – not least the coalition government and the PM himself. So our goal is to have the Bill tabled, debated and to keep the profile up in the lead up to the next election. We hope to make it a big election issue.

Q: Why now? What has stimulated the human rights act campaign?

A: I read a quote in the paper a few weeks ago by Peter Harcher – that I think is relevant to this question. His article opened with the statement; “it’s only when the tide goes out that you can see who’s swimming naked.” Although he wasn’t talking about human rights (or public nudity) – I think that his metaphor is apt to apply to the human rights issue.

I think that on September 11 the tide went out – the atmosphere of fear rolled in – and the response of the Australian government ever since, has revealed just how naked we are here in Australia. Since September 11, we have seen the introduction of a lot of legislation in a lot of areas that impact on human rights, but what we haven’t seen is a constructive debate or an informed debate around any of these laws. A lot of the talk on these issues has been sensationalist on both sides. We seem to have ended up with the Government shouting “national security” on the one hand – and with civil libertarian groups calling “civil liberties” – on the other – and no-one ever talks about achieving a balance.

I think now is the time for a Human Rights Act or a Charter of Rights to be introduced to help us manage these difficult issues – and to make sure that we are having informed debates within the Parliament and in the community. People need to be aware of what’s happening because ultimately greater awareness will promote greater confidence in the system – and will lead to better laws being passed.

Q: Is the New Matilda campaign specifically in response to the new anti-terror legislation – and Australia’s laws relating to asylum seekers?

A: No, not specifically, but it’s all tied into and mixed up in the community fear and in the issue of national security that has come at the fore ever since the terrorist attacks of September 11. September 11 and the Tampa crisis – were just months apart – and both occurred in the lead up to the government election, so I think that there have been a lot of government actions that have come out of this.

There has of course been the issue of asylum seekers, refugees and anti-terrorism legislation, but we have also seen the introduction of the national ID smart card – which has a lot of privacy issues linked with it. There has also been phone tapping legislation. There have event been changes at the state level. Take NSW as an example – and the government’s response to the Cronulla riots. They resulted in the introduction of legislation that gave police quite extreme powers.

So I think that there is fear in the community – on a whole range of issues – and so this Bill is important to address all of these, not just the terrorist legislation or refugee issues. The Bill goes towards addressing the very nature of our democracy and our confidence in the system.

Q: Why is it do you think that past efforts to introduce a bill of rights – at the Federal level – have failed?

A: I think there are a few reasons. I think that it has partly been due to some bad timing and party politics. The Whitlam initiative failed because the government got thrown out at a crucial stage of their campaign. After that the issue of human rights fell off the agenda. As I understand it, the renewed commitment to the issue by Gareth Evans in the 1980’s came to nothing as a result of internal Labor politics.

I think that if a Bill of Rights is to succeed it is necessary to put forward a human rights model that people can look at – and I don’t think this is something that has been done in the past. From looking at that model – people can actually see what is being proposed – what rights are being protected and how. It allows people the opportunity to have more informed discussion on the issue at all levels. I think that without a model, without a tangible piece of legislation, there is the risk that people end up having debates that become very extreme and unproductive. And as a result, a lot of the arguments that come out against a Bill of Rights end up being misdirected and misinformed.

I think both in the past and at present, what people are most afraid of and opposed to is the “absolutist” style of rights like you have in the US. And so I think that a lot of the anti-human rights sentiment stems from the widespread perception – that the people that support a Bill of Rights necessarily support a model of absolute rights. People need to understand that this kind of thinking amongst human rights advocates is the exception – and not the rule. People need to understand that the most human rights advocates agree and understand that Human Rights should be subject to some limitations. There is a lawyer in Melbourne – Julian Burnside – who puts it well. He says – "your right to swing your arm stops just short of my nose" – This expression is a good way of showing that rights have to be limited at times – and that’s fine – what’s important, is to ensure that any limitation is done so in a way that is proportionate to the goal you are trying to achieve.

This is the way forward if you are going to gain the support of the Australian people.

Q: In addition to this fear of absolutist style rights is the fear that a bill of rights is undemocratic in the sense that it transfers too much power from the parliament – to an unelected and unaccountable court. How does the draft bill deal with this?

A: To answer this I think it’s important to understand what’s actually in the Human rights act that we are putting forward. Rather than trying to change the current system of government – this Bill tries to strengthen it.

One of the greatest concerns of opponents to a Bill of Rights is as you said – that by giving the courts power to make decisions on human rights issues, it transfers too much power from the elected parliament to the unaccountable judges. Judges that the people cant vote out of power – if they don’t like what they’re doing.

So to meet these fears, New Matilda have tried to create some checks and balances on power. First of all – when a new law is created the Attorney-General (AG – the person in charge of all new laws) has to put forward a statement detailing how the law impacts on human rights – and if it does so in a negative way – saying why this limitation is necessary. Complementing the role of the AG is a Parliamentary committee. They have power to review statements made by the AG – and would conduct inquiries into human rights issues when necessary.

Next are the Courts – when they are asked to consider a law their first job is to try and consider or interpret the law in a way that is consistent with human rights. This means if there is some ambiguity in the law they can interpret it in a way that is in favour of human rights. If a law can’t be interpreted in line with human rights, the courts then have the power to make a declaration of compatibility. This means law then gets sent back to the parliament – where it must be reconsidered.

This system makes sure that power is not transferred from the parliament to the courts. The courts declaration of incompatibility, is really just a statement that doesn’t actually invalidate the law. The court is only giving their advice or opinion to the parliament – which in the end can be ignored. The government is under no obligation to amend the legislation, or take any action. However the point is that this mechanism informs debate in the parliament and in the community.


Q: Yes you’re right. I suppose then that one of the benefits of this system is that even if the government refuses to make the necessary changes – the public is made aware of the issue – and they then have power to do something about it.

A: Yes – true. If the government can justify their refusal – then that’s all well and good. And if they cant – they can get kicked out at the next election. And that’s how I think a democracy should work.


Q: Taking a step away from law and politics for a moment, I’m interested to know how you became involved in New Matilda? Having only graduated from university two years ago – becoming the executive officer of a national campaign is quite an achievement.

A: At uni I was always actively involved in politics – a member of various committees and the President of the UNSW Student Union. I was approached one day by Susan Ryan – The Chair of the New Matilda Campaign – and an ex-Federal Minister. She asked me if I wanted to volunteer in the early stages of the campaign. Being a recent law graduate and having a passion for both the law and politics (Westwing is my favourite show) – it was an amazing opportunity so I was pretty quick to say yes.

I was very involved in the campaign from the beginning and actually helped draft the Bill, so when a paid position came up – I applied – and got it. That was 12 or 13 months ago – and I’ve been the Executive officer ever since. One thing just led to another – I suppose it comes down to getting yourself out there and giving things a go.

Q: If young people want to take action on this issue – how do you suggest that they get involved in the campaign?

A: There are several ways that people can get involved in the campaign. First and foremost – we have a website at – www.humanrightsact.com.au – this gives you access to our campaign resource pages – they have alot of good information about what’s happening here in Australia, at both state and federal level and about what’s happening overseas. I encourage people to just visit the site and learn more about the issue.

If people support the New Matilda campaign and want to volunteer – I encourage them to contact me – email the campaign – at humanrightsact@matilda.com. By joining our mailing list you’ll be kept up to date on when our big events are occurring and when our lobbying will happen.

If people want to comment on the Bill I would be very interested to know what young people think about the Bill. I would be very interested to hear about whether young Australians think that there should be some specific youth rights. It would also be great to hear some general feedback about the wording of the bill and the way it’s structured. Whether people would like it to be more understandable for the “average Joe”.

Q: Are there events that people can attend?

A: There are events advertised through the web-site and through the mailing list. We are just finalizing the dates for the Darwin and Melbourne launches at the moment – so I’ll let you know exact dates as soon as I can.

(you can find more information on how you can get involved on the things to do – accompanying the issue page ‘The call for a Bill of Rights in Australia.”)