PART ONE
Introduction
The National Human Rights Consultation was announced on 10 December 2008. This part of the report provides an overview of how the Consultation was conducted and the matters the Committee was asked to consider.
Chapter 1 outlines the various strategies the Committee adopted in order to consult the Australian community. Chapter 2 offers a selection of what the Committee heard during the Consultation, and Chapter 3 discusses rights and responsibilities and provides an Australian context for the discussion in the remainder of the report.
1 The Consultation: an overview
On 10 December 2008 the Commonwealth Attorney-General, the Hon. Robert McClelland MP, launched the National Human Rights Consultation, honouring the Australian Labor Party’s 2007 election commitment to ‘initiate a public inquiry about how best to recognise and protect the human rights and freedoms enjoyed by all Australians’[1] and to ‘establish a process of consultation which will ensure that all Australians will be given the chance to have their say on this important question for our democracy’.[2]
A National Human Rights Consultation Committee was appointed to conduct the Consultation—academic and human rights advocate Father Frank Brennan (Chair), former broadcaster Ms Mary Kostakidis, former Australian Federal Police Commissioner Mr Mick Palmer, and barrister Ms Tammy Williams. Mr Philip Flood, a former senior public servant and diplomat, was subsequently appointed from late March 2009 to 30 June 2009 as an alternate for Mr Palmer, who was unable to attend some of the community roundtables because of his involvement in other government inquiries.
1.1 The Committee’s brief
In launching the Consultation, the Attorney-General issued terms of reference asking the Committee to consult the community on three primary questions:
- Which human rights (including corresponding responsibilities) should be protected and promoted?
- Are these human rights currently sufficiently protected and promoted?
- How could Australia better protect and promote human rights?
In conducting the Consultation, the Committee was asked to do the following:
- consult broadly with the community, particularly those who live in rural and regional areas;
- undertake a range of awareness raising activities to enhance participation in the consultation by a wide cross section of Australia’s diverse community;
- seek out the diverse range of views held by the community about the protection and promotion of human rights; and
- identify key issues raised by the community in relation to the protection and promotion of human rights.
The Committee was asked to report to the Federal Government on ‘the issues raised and the options identified for the Government to consider to enhance the protection and promotion of human rights’. It was also asked ‘to set out the advantages and disadvantages (including social and economic costs and benefits) and an assessment of the level of community support for each option it identifies’. The terms of reference further directed the Committee to ensure that the options identified ‘preserve the sovereignty of parliament and [do] not include a constitutionally entrenched bill of rights’. Appendix A presents the Committee’s terms of reference.
Initially, the Committee was to report to the government on 31 July 2009. This date was later changed to 31 August 2009 and subsequently—as a result of the overwhelming response to the call for public submissions—to 30 September 2009.
The Committee received secretariat support from officers in the Human Rights Branch of the Commonwealth Attorney-General’s Department.
1.2 The Consultation
The Committee resolved to seek out the views and experiences of the broadest possible range of community members interested in human rights—the mainstream public as well as vulnerable and marginalised groups. It was particularly concerned to hear from Indigenous Australians, the homeless, people with disabilities, people with mental illness, refugees, new migrants, prisoners, and individuals and organisations involved in the protection and promotion of rights, among them non-government organisations and advocacy groups. Additionally, the Committee sought the views of lawyers, academics, parliamentarians, judges, senior public servants and senior police. It also considered it important to seek views on the effects of human rights legislation in Victoria, the Australian Capital Territory and overseas—in particular, in the United Kingdom and New Zealand.
In brief, throughout its seven months of public consultations the Committee did the following:
- invited written submissions
- held 66 community roundtables—‘town hall’–style meetings—in 52 locations around the country, in metropolitan and regional areas and in remote communities
- held an online forum for discussion of the three primary consultation questions and the question of whether or not Australia needs a Human Rights Act
- held many meetings with a broad range of interested organisations and individuals
- commissioned a national phone survey and focus group research in order to gain a better understanding of the views of the wider Australian community
- commissioned social research in order to gain a better understanding of the views of members of particular marginalised groups
- commissioned an analysis of the economic and social costs and benefits of a number of options for better protecting and promoting human rights
- held three days of public hearings in Canberra to discuss matters emerging from the submissions, roundtables and meetings
- contributed to the national conversation on human rights in a range of mainstream media as well as hosting Facebook pages. The Department of Education, Employment and Workplace Relations also organised an online discussion of human rights for younger Australians on the Australian Youth Forum website.
Throughout the Consultation the Secretariat drafted and distributed a range of printed materials, maintained the Consultation website and staffed a 1800 telephone hotline. Among the printed materials were the National Human Rights Consultation Background Paper and a document outlining the consultation process, entitled About the National Human Rights Consultation. These materials were available in a variety of formats, among them in large print and as PDFs.
The Committee’s work began in earnest in early 2009. It held a press conference on 4 February in Parliament House in Canberra to officially launch the public consultation phase of its work.
Submissions received
People were able to lodge submissions from the day the Consultation was launched until 15 June 2009. In total, the Committee received 35 014 written submissions—by far the largest response to a national consultation in Australia.
The Committee asked that submissions be posted, emailed or presented using an online submission form on the website, where people could type in free-text responses as well as send documents as attachments. By 15 June 2009 the Committee had received 26 650 submissions electronically; the remainder arrived by post.
A substantial number of the submissions received appeared to have been facilitated by campaigns run by lobby groups. In particular, the Committee received 14 604 submissions as part of a campaign run by GetUp! and 10 488 as part of a campaign run by Amnesty International Australia. A number of petitions incorporating hundreds of signatures were also received.
The subject that generated the greatest amount of discussion in the submissions was whether or not Australia needs a Human Rights Act. Of the 35 014 submissions received, 32 091 raised the question, there being 27 888 in favour of a Human Rights Act and 4203 against. Other reform options were raised in 11 per cent of submissions, most of them favouring an increase in human rights education in the community.
Individual topics discussed in submissions ranged from mental illness and the human rights implications of homelessness to problems with aged care and the discrimination faced by people in same-sex relationships. The human rights aspects of disabilities, racism, sex discrimination and religious freedom were the most frequently discussed subjects.
Examples of the submissions are available on the Consultation website. (The authors gave permission for them to be published.)
Submission analysis
Every submission received during the Consultation was analysed in order to identify the following:
- the number of submissions supporting the different options for the human rights and responsibilities that should be protected and promoted
- the number of submissions arguing that human rights are already sufficiently protected and promoted or expressing the contrary view
- the number of submissions supporting each of the reform options identified through the Consultation process
- the number of submissions raising specific human rights concerns—for example, in relation to homelessness, mental illness, asylum seekers, aged care, euthanasia, prisoners, young people, and national security.
Committee members each read a large number of the submissions. They considered it important to ensure that they had read enough submissions to gain a clear sense of the variety of subjects being discussed, the responses to the specific questions asked, the variety of people who felt strongly enough to make submissions (and their reasons for doing so), the various legal, economic and social arguments put forward, and the very many personal stories that were shared. Accordingly, Committee members read a broad range of submissions from members of the public, experts, human rights advocates, and various organisations. Some of these submissions contained a paragraph only; others ran to more than 100 pages.
Community roundtables
Sixty-six community roundtables were held between February and June 2009. Figure 1 shows the 52 locations at which they were held.
Chaired by a Committee member and running for two hours, the roundtables varied in size depending largely on the size of the community: in major metropolitan centres up to 250 people attended; in smaller towns groups of about 25 were common.
The format of the roundtables varied somewhat, according to the interests of the participants, but typically involved an introduction and overview of the Consultation by a Committee member, then participants being asked to respond to the terms of reference for the Consultation. Participants generally worked in their table groups to respond to the three primary consultation questions and reported back to the whole meeting.
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One of three Brisbane community roundtables
About 6310 people registered to attend the roundtables; many more attended without registration. The responses to the three primary consultation questions were recorded by participants at each roundtable, both individually and in small groups, and were provided to the secretariat members present. The material provided to secretariat members was later analysed. As with the written submissions, the question of whether a Human Rights Act is needed received a great deal of attention, and the overwhelming number of participants recorded their support for such an Act. Increased human rights education and development of a stronger human rights culture were also an important focus of the roundtable discussions.
Figure 1 The location of the community roundtables
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Tammy Williams and secretariat members en route to Charleville community roundtable
Throughout Australia participants were generally appreciative of having the opportunity to participate in a national debate on human rights. As one participant said, ‘The one thing … at this forum that I’ve really found uplifting is the right we have to challenge and voice our concerns about things that we feel strongly about’.[3] Some participants felt they had ‘learnt a lot’[4] about human rights, and a few said they had changed their minds about the best way to protect human rights.[5]
The Consultation website and Facebook pages
The Consultation website, which the secretariat managed, provided, among other things, background information as well as a ‘Hold your own community roundtable’ kit for people who were unable to attend one of the Committee’s community roundtables. Using the website, people could subscribe to receive email updates on the Committee’s activities and could send emails with inquiries. The website also provided regular updates from the Committee, enabled people to register to attend roundtables, provided summaries of each of the roundtables, and offered answers to frequently asked questions and links to other useful human rights resources.
The Committee established a Facebook page that gave background information about the Consultation and provided links to the website and the online forum. The Chair of the Committee also had a personal Facebook page.
The online forum
The online forum ran from 19 May 2009 until 26 June 2009. It was hosted on behalf of the Committee by Global Access Partners on its Open Forum website. The primary aim of the online forum was to gather public responses to the three primary questions set out in the Committee’s terms of reference and to facilitate public debate on an important question emerging from the community roundtables and submissions—‘Does Australia need a charter or bill of rights?’
The debates on the online forum were led by the Chair of the Committee and facilitated by respected legal academics Professor George Williams and Professor Tom Campbell.[6] In its six weeks of operation the forum received 12 622 visits from 8932 people. There was unanimity among the users about the importance of human rights, but no overwhelming majority emerged for or against a statutory bill or charter of rights.
On 16 January 2009 the Australian Youth Forum launched an online discussion board on human rights. The discussion board gave its audience the opportunity to put forward their ideas on human rights. In the two months the discussion board was active on the Australian Youth Forum website it received 45 posts and over 600 votes from young people.
The ideas submitted through the online discussion were compiled and presented as a submission to the Consultation from the young people of Australia. The posts made focused on things such as the right to equality and non-discrimination for people under 18 years of age, the rights of Indigenous Australians, and the rights of people in developing countries.
Additional meetings
At the beginning of the Consultation the Chair wrote to all federal members of parliament, all premiers and chief ministers, all attorneys-general, and the chief justices of all courts in Australia, seeking submissions and offering to meet. The Committee then met with a range of individuals and organisations throughout the Consultation. Among them were parliamentarians, senior public servants, police commissioners, judges and retired judges, anti-discrimination commissioners, and many others. The Committee also met with prominent individuals who were visiting Australia, including Baroness Scotland (Attorney General for England and Wales and Northern Ireland), a visiting South African judge, and a number of New Zealand politicians, public servants and judges. The Chair also visited Christmas Island to meet people in immigration detention and to conduct a community roundtable with Christmas Island residents.
The Committee met with representatives of various community groups, non-government organisations and other bodies involved in the protection and promotion of human rights or working with people for whom human rights are a particular concern. This included a visit to a New South Wales prison to meet a group of prisoners and discuss their experiences; a visit to schools in Alice Springs, among them one that has introduced a range of initiatives aimed at improving educational outcomes for Indigenous children living in the town camps; a visit to the Matthew Talbot Hostel in Sydney’s Woolloomooloo; and a meeting at the Wayside Chapel with providers of services to the homeless in the Kings Cross area.
The Chair also addressed the Australian Council of Social Service National Congress, the executive of the Law Council of Australia, the Sydney Institute, the Medico-Legal Society of Victoria, the annual meeting of Australia’s police commissioners, the annual seminar of Queensland Supreme Court judges, and the annual conference of the Queensland District Court. The Committee met members of the Human Rights Roundtable convened by the Australian Human Rights Commission. And the Chair addressed the General Synod of the Anglican Church of Australia as well as two meetings convened by the Australian Christian Lobby.
Keen to learn about the experiences of the two jurisdictions in Australia with human rights legislation, the Committee also held meetings with a range of people involved in implementation of the ACT Human Rights Act and the Victorian Charter of Human Rights and Responsibilities Act. Among these people were the Victorian Solicitor-General and representatives of the Victorian Department of Justice; the Victorian Police Commissioner; Victorian Supreme Court judges; representatives of the Victorian Department of Human Services, the Victorian Equal Opportunity & Human Rights Commission and the ACT Department of Justice and Community Safety; the Australian Federal Police Commissioner; ACT Supreme Court judges; and representatives of the ACT Human Rights Commission.
Additionally, the Chair addressed the Commonwealth Attorney-General’s annual non-government organisation forum on human rights and met three times with members of a Commonwealth interdepartmental committee established by the Attorney-General’s Department.
Public hearings
In early July 2009 three days of public hearings were held at Parliament House in Canberra to conclude the consultation process. In this way the Committee was able to invite some of those who had made submissions to discuss aspects of human rights emerging from the community roundtables and submissions.
These discussions gave the Committee further insights into the views of domestic and international commentators on human rights protection. They also gave the public an opportunity to hear prominent human rights advocates, as well as individuals who might have experienced human rights problems in our community.
Over 70 speakers took part in panel discussions and debates, and several British speakers appeared in interviews on video, among them Lord Thomas Bingham, former Law Lord; and Michael Wills MP, the Minister for Human Rights. Geoffrey Robertson QC, now based in the United Kingdom, also appeared.
These public hearings were subsequently televised on the Australian Public Affairs Channel.
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The Committee at the conclusion of the public hearings
Phone survey and focus group research
The Committee engaged Colmar Brunton Social Research to develop a two-pronged research project, the main purpose of which was to allow the Committee to gain an appreciation of the level of interest in and knowledge of and attitudes about human rights and their protection among a random sample of Australians who had not attended the community roundtables or made a submission.
The project involved convening 15 small focus groups—one metropolitan and one regional group in each state and territory (except for the ACT, where no regional focus group was convened)—and this was followed by a national telephone survey of 1200 people. The research team used the focus groups to obtain a qualitative understanding of the community’s views about human rights and identify questions for use in the telephone survey, which quantified attitudes and preferences. Appendix B summarises the resultant report.
Devolved consultation
Colmar Brunton Social Research was also commissioned to conduct a focus group study in order to cast light on the experiences and opinions of marginalised and vulnerable groups—individuals who are thought to be especially at risk of having their rights threatened or violated.
This devolved consultation research project entailed nine small-group and individual discussions and nine interviews with representatives of non-government organisations working with these groups. The groups involved were homeless people; people with mental illness and people with physical disabilities; recently arrived refugees, immigrants and people recently released from immigration detention; ex-prisoners; the aged; and people with drug or alcohol dependencies. The discussions focused on understanding the practical, day-to-day experiences of members of these groups. Appendix C summarises the resultant report.
Social and economic cost–benefit analysis
The Committee commissioned The Allen Consulting Group to provide a cost–benefit analysis of options for the protection and promotion of human rights in Australia. The options put forward to the consultants had been developed by the Secretariat before the closing of the submission and community roundtable phases of the Consultation, so they are more limited than the full spectrum of options that were identified throughout the Consultation. They covered various statutory models of a Human Rights Act, increased human rights education, greater parliamentary scrutiny, an increased role for the Australian Human Rights Commission, reforms to the federal anti-discrimination framework, the development of a new National Action Plan for human rights, as well as the option of maintaining the current system of human rights protections (that is, a ‘do nothing’ approach).
The consultants developed common criteria against which to compare and evaluate each option—benefits to stakeholders, implementation timeliness and costs, and risks. Appendix D presents the consultants’ report.
Advice from the Solicitor-General
The Committee sought from the Solicitor-General advice on the constitutional implications of various aspects of a potential Human Rights Act. Appendix E presents the Solicitor-General’s advice.
Broader community discussion
In addition to each initiative just outlined, the Committee was pleased to note the strong interest in the ‘human rights debate’ that was demonstrated throughout the Consultation process. For example, several books on the subject were published during the Consultation period, among them A Statute of Liberty by Geoffrey Robertson; Bills of Rights in Australia by Andrew Byrnes, Hilary Charlesworth and Gabrielle McKinnon; and Don’t Leave Us with the Bill: the case against an Australian bill of rights, edited by Julian Leeser and Ryan Haddrick. Opinion pieces appeared regularly in the print media, as did articles covering the development and progress of the Consultation.
[1] Australian Labor Party, ALP National Platform and Constitution (2007) 7 <http://www.alp.org.au/platform/chapter_13.php> at 3 September 09.
[2] ibid., 9.
[3] Tweed Heads, Community Roundtable.
[4] Wollongong, Community Roundtable.
[5] Burnie, Community Roundtable.
[6] Professor George Williams and Professor Tom Campbell have expressed differing views on whether Australia should have a Human Rights Act.