Time for that bill of rights from Labor?

Former PM Kevin Rudd. Picture: Sam Ruttyn

The Albanese government’s law reform agenda extends well beyond an Indigenous voice and a republic.

It also includes a commitment to assess whether parliament should enact a national charter or bill of rights. John Curtin, Gough Whitlam, Bob Hawke and Kevin Rudd all failed to achieve this. There are good reasons to think the current government will have greater success. Timing is on its side, as is new polling showing popular support for a charter has surged while opposition has all but evaporated.

Labor’s last attempt at a national human rights law began when prime minister Rudd initiated a wide-ranging inquiry chaired by Frank Brennan. The process attracted enormous interest, with 66 community roundtables held in 52 locations around the nation and submissions from 35,014 people. Australians told powerful stories about how the system failed to protect their basic rights in areas such as aged care, health and disability support.

The Brennan committee reported in 2009 that Australians wanted reform. The submissions overwhelmingly favoured a charter of rights, as did independent polling showing 57 per cent of the community in support, 14 per cent opposed and the remainder undecided. The committee’s findings laid the foundation to move forward with a national charter.

However, the Rudd government squandered the opportunity when it became mired in leadership turmoil. Looking for an exit from the debate, it backed away on the basis that a charter would be divisive.

Labor was left with a problem. Its own process had demonstrated that the system for protecting Australian’s human rights was broken. The law often failed the most vulnerable people and left democratic rights such as freedom of speech exposed. Labor responded with a modest change to parliamentary processes. A new regime was introduced in 2011 to strengthen the parliament’s role in reviewing legislation against international human rights standards. However, there was nothing to prevent parliament from passing rights-infringing laws and no remedy if it did so.

There was little enthusiasm for the new scrutiny regime, with many saying it would not deliver on the promise of better protection. Labor recognised this by kicking the issue down the road to when it was next in office. This was reflected in its most recent election platform, which commits the Albanese government to review the human rights framework and determine if it can be “enhanced through a statutory charter of human rights”.

This review will show the parliamentary scrutiny regime has failed to fix many serious human rights problems identified in the Brennan report. The period of Coalition government bears this out, with successive prime ministers grappling unsuccessfully with protecting freedom of religion. In other areas such as aged care, disturbing stories continue to emerge about the lack of dignity and protection of rights of many of our most vulnerable people.

The decade since Labor’s scrutiny regime was introduced has also seen deterioration in other areas. Rather than being inhibited, parliament has accelerated the passage of laws that violate rights such as freedom of speech and of the press. There has been more talk in parliament about human rights but less restraint. The fact Labor’s regime has proved to be ineffectual comes as no surprise. Having parliament scrutinise itself on human rights is akin to having a fox guard the henhouse.

The pandemic has further exposed the chronic lack of protection for human rights in Australia. Federal and state governments have made it crystal clear how easily they can take away the most fundamental of rights without checks or balances such as disallowance by parliament. Many people have been shocked at how easily ministers can ban Australians from returning home under threat of jail, lock us down in our homes, close borders, mandate vaccination and impose curfews.

The problems of the past decade have had a powerful impact on public opinion. New polling by Amnesty International shows 73 per cent of the community support a national human rights law, with 24 per cent uncertain and only 3 per cent opposed. This is confirmed by other polls. Another Amnesty poll in May last year found 76 per cent of Australians, including 70 per cent of Liberal voters, favour a national charter with only 4 per cent opposed. Another poll, again by the Human Rights Law Centre, late last year showed a surge in support to 83 per cent of the community.

Anthony Albanese’s period in office coincides with a 20 per cent increase in support among Australians for a national charter of rights, with those opposed now less than 5 per cent. The government also has a favourable configuration in the Senate, and a long list of powerful examples from the pandemic and vulnerable Australians showing why the system must be fixed. Albanese has come to office in the best position of any prime minister since World War II to bring about national human rights reform.

George Williams is a deputy vice-chancellor and professor of law at the University of NSW.