Human rights report a poisoned chalice

THE Rudd government is under pressure to introduce a human rights act, transfer significant new powers to judges and launch a campaign to entrench a rights culture in the community. This follows the threshold victory of the human rights lobby, which has won much of its agenda in the recommendations of the National Human Rights Consultation report chaired by Frank Brennan.

Despite its qualifications, caution on social and economic rights and gentle start on a long escalator, this report is ambitious for a recasting of Australian governance. Its aim is to entrench values enshrined in human rights ideology. Every vital institution is affected: public service, the parliament and the courts. For the the human rights lobby, with its long-run plan to transform Australia, this is an important start. The Brennan report, rather than drawing a line in the sand, has encouraged the lobby, given its campaign a new legitimacy and brought pressure on the Rudd government to bring Australia into line with international human rights norms.

This report, in effect, seeks the obliteration of the Howard cultural legacy. It makes clear the driving force behind the submissions was the hated Howard agenda of national security laws, the Northern Territory intervention and tough asylum-seeker laws.

The intent of the human rights lobby is to change Australia's system of government to prevent such measures being introduced in future. Its initial progress is manifest in this document.

The terminology is deceptive. The human rights debate is about politics: it is a device to achieve social, political and economic change opposed by a majority of the population by recourse to human rights law as interpreted by the courts. The Brennan report will further divide the country.

It is a poisoned chalice for Rudd. He has three choices: repudiate the report's thrust and alienate a significant section of elite and "true believer" opinion; embrace its recommendations and hand the Coalition an election campaign on a populist values platform around which it is united; or strike a compromise to defuse human rights as a frontline political issue.

This may be hard because Brennan backs a human rights act and this will become the political litmus test. Because the Brennan committee refused to make the tough decision and reject the human rights act, the decision passes to Rudd. Brennan has left Rudd with a comprehensive mess and without political cover.

Attorney-General Robert McClelland seemed terrified of giving the slighest endorsement to the report when it was released this week.

Shadow attorney-general George Brandis signalled the Coalition will fight it. It has no choice.

Seeking to rally the demoralised conservative banner, Brandis resorted to hyperbole, saying the report threatened "the most important de facto alteration to Australia's system of government in our history". He raised the spectre of courts having the final say on military conscription, trade union rights and gay marriage.

Brandis captured the essence of this report by calling it "the ultimate triumph of the elites". There is no public demand for such action. Research commissioned by the inquiry found that only 10 per cent of people felt their rights had been infringed and most felt their rights were not threatened. Yet our system of government is to be recast.

This report testifies to the blind utopianism of the human rights cause. It cannot see the obvious political and public administrative impact from this report: it will lead to bigger and weaker government, more bureaucracy, more litigation, a politicisation of the judiciary, a more polarised community, the undermining of much of the existing human rights protections built over decades and, ultimately and ironically, a failure to make any real improvements in human rights.

The report is revealing and unconsciously patronising. The uneducated Australian people are consumed by "complacency" that is "not conducive to the achievement of a human rights culture". They must be re-educated in a massive campaign at school and university so they understand the need to respect "the dignity, culture and traditions of other people".

The contempt is breathtaking. The spectre of Australian racism and a flawed Constitution that disrespects human rights are the assumptions that underpin this mission to change Australia's political culture.

The main critique of this report is its unworkability and its refusal to make hard decisions. This point is conceded by Brennan himself on the pivotal question of how the proposed human rights act would function. The committee supports the dishonestly described "dialogue" model that requires the High Court of Australia to issue "declarations of incompatibility" when a law is deemed to conflict with human rights guarantees. The committee dismisses the view this constitutes an "unwarranted interference" by judges into parliament's domain.

However, it insists that only the High Court should issue such declarations and cites the Solicitor-General's advice that this is constitutional, a contentious point disputed by constitutional lawyers and sure to be tested if Rudd goes down this path.

Incredibly, however, the committee (or at least some of its members) doesn't believe this recommendation can actually work. There could, the report reveals, "be a problem" with it.

In many cases the High Court might not necessarily grant leave for an appeal. Because the committee opposes other courts having the "declarations" authority it is entirely possible, therefore, that this measure is unworkable.

Brennan told this column yesterday that this is his own position. "My own view is that I think this provision is not going to be workable," he said. "That's why we have outlined in the report a fallback provision.

"If the Rudd government was to consider this 'declaration of incompatibility' provision it would need to engage the High Court in a discussion on this issue first and also seek further advice from the Solicitor-General.

"I think that while the declaration of incompatibility may be constitutional there are enormous practical problems with it that mean it may not be viable."

It is idle to believe that Brennan would not have discussed this issue with former High Court judges. There allows only one interpretation: there are dangers for the High Court as an institution in this course of action.

Given this, how stupid would the Rudd government be to tamper with the court's standing when the chairman of the report believes the pivotal provision in his own recommended "dialogue" model cannot work?

Yet Brennan's fallback alternative, which brings the issue back to parliament for "correction", still depends on judicial reasoning. The "bottom line" throughout this report is judicial action. In an exercise of tortuous artificiality, the committee asserts that parties to the court case or the Australian Human Rights Commission could be given the power to notify the parliamentary committee whenever a court's reasoning "indicated non-compliance" with the human rights act. This typifies the distortion of administrative and judicial process that will be entertained in the campaign to achieve a human rights act.

Reviewing the "dialogue" model, University of Sydney professor Helen Irving says: "The proposed HRA is much closer to the sort of act that creates real powers of judicial review and allows the courts to encroach upon the legislature. The erosion of the separation of powers, as we know it, will follow. Advocates claim they do not intend this but, reading the report, one cannot avoid the conclusion that their claims are disingenuous."

Former NSW premier Bob Carr says: "I would assume there will be a great deal of scepticism within the Rudd cabinet about something that reeks of such 1980s enthusiasms. There is no evidence of a groundswell from the Australian community in favour of a quantum increase in judge-made law."

Irving argues such complications in the "dialogue" model mean the more substantial change may be independent legal action against public officials alleged to have breached human rights provisions in their decisions.

The integrity and professionalism of public servants will be under siege. The defect is the report's view that government decisions be enshrined around individual rights and its downgrading of the public and national interest.

There are millions of decisions made each year by public servants affecting individuals. The committee seeks to change the basis of administrative law such that these decisions be governed not just by relevant statute but by a new set of human rights guarantees, and that failure to do so will be an error at law that opens the way for damages to be awarded. This changes the basis of Australian governance.

The tragedy of this report is that Brennan had a chance to create a consensus for action - stronger parliamentary oversight over human rights - but threw it away in the quest for a human rights act. This creates a problem for the Rudd government, threatens to divide the Labor Party and offers a gift to the Coalition, though it may be incapable of seizing its chance. It is a debate essentially about Australian values and governance that will take the culture war to another zenith.

The platform the committee envisages for human rights advocacy is enormous. It wants a definitive list of Australia's human rights obligations drawn up within two years. It requires a "statement of compatibility" with human rights provisions attached to every bill. It calls for a joint parliamentary committee on human rights to review all bills for compliance with human rights provisions. It wants the Acts Interpretation Act amended to require judges to interpret laws consistent with codified rights obligations.

In advocating a human rights act it wants coverage to include all people in Australia, not just Australian citizens.

This means our system of government will be changed partly to secure the human rights of people who are not citizens. It illustrates the human rights mindset. The more Australians understand this issue, the more suspicious they will become.

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Will a human rights charter be popular?

The public opinion research accompanying the report of the National Human Rights Consultation suggests that those proposing a charter of rights have a tough task ahead.

These days, only bastards and people who know a little political philosophy are likely to question the whole idea of ‘human rights’ (’nonsense upon stilts’, as the utilitarian philosopher Jeremy Bentham memorably called them). So on questions about parliament paying attention to human rights or increased education on human rights only one or two percent of respondents express opposition.

But only 7% of respondents disagreed with the proposition that human rights are adequately protected (with a large 29% not expressing a view).

Worse for the main advocates of putting general human rights into legislation or the Constitution, the public isn’t in general very sympathetic on some of the issues that are driving the human rights push in the first place.

Only 28% think that the human rights of asylum seekers need more protection, and 30% think that asylum seekers need less protection. Only 32% think gays and lesbians need more protection (18% less).

While 57% think that Indigenous people in remote areas need their rights better protected, other polling shows overwhelming support for the NT intervention human rights advocates opposed. An ACNielsen poll in 2006 found only 29% of respondents believing that the federal government had shown ‘not enough respect for civil liberties’ in dealing with the terrorist threat, another issue where human rights advocates have been active.

So while when the issue of human rights is phrased at a very high level of abstraction most people will say that they are a good thing, when they understand what human rights laws are likely to mean in practice opinion is likely to turn negative.

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Baby supposedly protected by an ideologically blinded child welfare Dept. was 'horrifically' injured

A BABY girl has brain injury and suffered two broken legs since being put in the care of relatives after DOCS took her from a loving foster family. In one of the worst Department of Community Services failures since the starvation death of seven-year-old "Ebony" two years ago, the baby was left fighting for life in June.

Ebony is just one of an unknown number of children that DOCS hands back to relatives in blind adherence to the belief that the child is better off remaining in the family. The policy has come under fire from experts who argue it is not always the safest option.

DOCS admitted yesterday that, despite dire warnings contained in a DOCS review of Ebony's murder which clearly stated that case workers overlook problems in their desire to return children, she was given back to relatives.

The horrifically injured nine-month-old, who can be known only as "Chloe", was removed from her mother days after her birth. She thrived with a foster carer in Western Sydney and was taken on weekly visits to see her mother who was in Silverwater jail. But in March, DOCS caseworkers insisted Chloe, who has another sibling in state care, be moved to Lismore to live with relatives.

Police are investigating whether her horrific injuries were caused by violent shaking and detectives from a joint investigation response team were working on the case.

A DOCS spokeswoman said Chloe was rushed to Lismore hospital in June and then flown to Brisbane. She is now back in Sydney and DOCS said her new foster family was being supported in "meeting the baby's medical needs".

The spokeswoman said the family members who took the baby were subjected to police checks and checks by the NSW Commission for Children and Young People. DOCS will now apply to a court to have custody of the girl until she is 18.

Opposition community services spokeswoman Pru Goward said the Government should review poor outcomes to determine whether DOCS caseworkers should be criminally investigated for malpractice. "DOCS are just careless. They are so absorbed with returning children to their families that they don't give the child the right to protection," she said. "It is such an obvious dereliction of duty. Somebody's head should roll." Ms Goward said the prospect of punishment for caseworkers could provide better outcomes.

But Community Services Minister Linda Burney rejected the threat of criminal action against case workers. She said all placements were considered carefully and on the grounds of safety. A desire to keep children with their families would not change, Ms Burney said. When it was put to her that baby Chloe's life-threatening injuries were caused in June in Lismore while in family care and not when she had been safe with a foster carer in Sydney months earlier, she replied: "You just don't know that."

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Government hospitals operating at dangerous capacities

Not one hospital in Sydney is operating at a safe level, with patients waiting longer for elective surgery and in emergency, the latest AMA Public Hospital Report Card says. Australian Medical Association NSW president Brian Morton said average waiting times for elective surgery patients in NSW had "significantly increased". This meant that one in four patients needing semi-urgent surgery, such as the removal of a breast lump, were being put at risk, Dr Morton said. "Our public hospitals are being forced to operate dangerously above capacity, compromising patient safety and quality of care," he said.

He said all major metropolitan hospitals including Westmead and Royal North Shore were often forced to operate at 95 per cent capacity or higher, which is well above the benchmark of 85 per cent.

Dr Morton said that a cash boost of $448 million by the Federal Government in 2007-08 had clearly not improved public hospital performance and partly blamed NSW Health for cutting its expenditure by $7 million for that year. He said that, to keep up with inflation, NSW should have provided about half a billion dollars in funding.

The performance of emergency departments was worse for 2008-09 than in 2006-07. Only 66 per cent of category three patients (urgent, to be seen within 30 minutes) were seen within the recommended time in 2008-09, compared with 71 per cent in 2006-07. Also, the percentage of category two elective surgery patients (recommended to be seen within 90 days) seen within the recommended time was 75 per cent for 2008-09, an increase of only 1 per cent from the previous year. The median waiting time for elective surgery has increased by four days to 39 days.

Australian Medical Association president Dr Andrew Pesce said it was the worst AMA report card ever. He said the Rudd Government and the states needed to be more transparent about where extra funding was going because it was not improving patient care. Even worse, the true waiting lists were hidden because many patients were waiting even to get on a list, he said.

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Gimme that old-time religion

A FORMER political running mate of Family First senator Steve Fielding says dark forces are casting spells on Federal Parliament. Catch the Fire Ministries pastor Daniel Nalliah has organised a "prayer offensive'' to combat evil forces including witchcraft, homosexuality and abortion.

The discovery of a "black mass altar'' at Mount Ainslie in Canberra by a group of school students had inspired him to organise a prayer gathering at the area on Saturday. "The type of altar discovered on Mount Ainslie pointed to a black mass and the work of dark forces wanting to cast spells on Australia and federal parliament,'' Mr Nalliah said. "These days people don't think the devil is real but we have seen the bad effects of the spiritual being known as Satan and we believe there is a spiritual fight over the nation of Australia being fought in the heavens.''

Asked what evidence of Satan there was in parliament, Mr Nalliah said: "The number of politicians who have serious marriage problems.'' Legislation supporting homosexuality, abortion and a push for a bill of rights were other areas where Mr Nallian said the devil was having influence. "Me trying to explain it to you is like trying to teach a cricketer how to play soccer,'' Mr Nalliah said.

He said 100 Christians from across Australia would be at Mount Ainslie this weekend. "Our main reason for going to Mount Ainslie is to pull down the strongholds of the devil to repent and pray against any evil done in our land including the adverse effects of witchcraft, homosexuality and, of course, the devastation of abortion, so that God will save our land.''

Senator Fielding and Mr Nalliah occupied the first and second spots on Family First's Victorian Senate ticket in 2004. But Senator Fielding, who was elected to the Senate with Labor preferences, said Mr Nalliah had been asked to leave the party in late 2004. "Family First has had no connection with Danny Nalliah since he was asked to leave the party five years ago after he made demeaning comments about a minority group,'' Senator Fielding said in a statement. "He has no voice in Family First.''

Asked about Senator Fielding, Mr Nalliah said his former running mate did not have a long-term political career because of his failure to defend the nuclear family. "He won't get re-elected because the Christian vote won't be there for him,'' he said. "Steve has not been standing up for the Christian cause.''

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Kevin Rudd's "refugee" policies make Australia a soft target

When federal Labor MP Michael Danby visited Christmas Island last year he declared that the new $400 million, 800-bed Christmas Island detention centre, a legacy of the Howard government, was "an enormous white elephant".

For more than a year Immigration Minister Chris Evans maintained the pretence that the Government's softening of policies on asylum seekers would have no material effect on the number of arrivals. To support this fiction, the Government transferred boat people to Christmas Island, but housed them in a construction camp, private accommodation, and an obsolete detention facility at Phosphate Hill. Anywhere but the Christmas Island detention centre.

Today, the detention centre is not just full, it is overflowing. The Government has been forced to ship 200 bunk beds to Christmas Island, where more than 1000 detainees are being housed. Another 58 are on their way. The Rudd Government is readying another 500-bed detention centre in Darwin. It is also funding the construction of yet another detention centre, in Sumatra, on behalf of the Indonesian Government.

The policy announced last year that "detention in immigration detention centres would be a last resort" is now in tatters. For the past two months, boat people are have been intercepted up at a rate of 100 a week. Thousands of asylum seekers from South Asia have reached Indonesia to apply for refugee status in Australia or by-pass border controls and reach Australia by boat.

The Christmas Island detention centre, with its 800 beds, shows that the numbers are far higher than the previous government envisaged under its policies. Not only has the number of boat people built steadily since the change of policy, so too have the tensions and confrontations implicit in people smuggling. As this piece was being written, the Indonesian military was engaged in a volatile and potentially life-threatening stand-off with a small cargo ship packed with an estimated 260 Sri Lankan asylum seekers.

The ship was heading for Christmas Island when it was intercepted. The stand-off is taking place in Indonesian waters and was instigated by a tip from Australian intelligence. Some of the Sri Lankans on board are threatening to scuttle the ship or jump into the water rather than allow the vessel to be towed back to Indonesia. In accordance with the tactics long used by people smugglers, the putative asylum seekers are engaging in brinkmanship. Since arriving in Indonesia they have destroyed their passports and are now threatening their own lives.

This tactic has already produced deadly results this year. On April 16, five Afghan asylum seekers were killed when their boat exploded off the Ashmore Reef. Within 24 hours, West Australian Premier Colin Barnett said he had been advised by police that the explosion was the result of deliberate sabotage. He was roundly criticised by the Rudd Government. For six months, the Federal Government refused to comment on the incident, saying it was under police investigation. Last week police confirmed that the fatal fire had been deliberately lit.

The Premier accused the Government of delay and dissembling: "I was quoting from a formal report from the emergency personnel at the site." He said the Rudd Government had been given the same report at the same time, but said nothing. He was also highly critical of the Federal Government's decision last week to grant asylum status to the remaining 42 Afghans who had been on the boat, before the coronial inquiry had even taken place.

Barnett said the perpetrators of the crime had never been identified, Australian Navy personnel had been injured by the explosion, and there was a possibility that some of those complicit in the deaths had now been granted asylum status. This, he said, was another signal of weakness from the Government.

Yesterday, Prime Minister Kevin Rudd was talking tough about "illegal immigrants". But thousand of people have read the signals sent by his Government and mobilised to bypass Australian refugee and immigration procedures. They have taken this risk in the confidence that once they enter Australian waters, they are highly likely to be rewarded with Australian residency. While that confidence remains well founded, the ugly events of the past year and the present day will continue.

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