Back in March, Attorney-General Mark Dreyfus set the wheels in motion for what could turn out to be a difficult chapter in Labor’s unending quest for a federal charter of rights.
For a while, this proposal looked like plain sailing.
Dreyfus asked the Labor-dominated parliamentary joint committee on human rights to review the effectiveness of the nation’s human rights framework and to consider how it could be improved.
The committee then invited submissions on whether to enact a statutory charter of rights – just like the charter that had been considered and then spiked by Labor in 2010.
It even advised interested parties their suggestions could refer to a position paper by the Australian Human Rights Commission.
And in an amazing coincidence, that position paper contains a ready-made model for a federal charter derived from UN treaties, including the International Covenant on Civil and Political Rights.
But here’s the problem: Last month, the UN Human Rights Committee found breaches of this treaty had taken place in NSW and needed to be fixed.
This is a problem for Dreyfus because the federal government, not NSW, signed up to the ICCPR and agreed to provide a remedy for anyone whose rights under that treaty are infringed.
One option is to do nothing. But inaction has its own costs.
How could Labor persuade the nation we need a national charter based on the ICCPR if Labor intends to do nothing to address the abuse of human rights that are guaranteed by that treaty?
And how could Penny Wong lecture other countries about human rights while being part of a government that permits abuses to go unaddressed?
The human rights breaches at the heart of this affair relate to the flawed legal infrastructure surrounding the NSW Independent Commission Against Corruption – particularly its failure to permit an appeal on the merits against ICAC’s findings.
This was taken up by human rights lawyer Geoffrey Robertson KC, who told the UN committee how businessman Charif Kazal had been denied his rights under Article 17 of the treaty.
This provision has two sections. The first says nobody “shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation”. The second says everyone “has the right to the protection of the law against such interference or attacks”.
By denying Kazal his right to test the merits of ICAC’s unproven assertions, Australia – and not just NSW – has breached international human rights standards.
Dreyfus has a choice: he could persuade NSW to bring the ICAC system into line and pay compensation to Kazal, as called for by the UN committee.
That would give NSW Labor government an opportunity to fix other distortions that were put in place by the previous Coalition state government to appease ICAC.
How long, for example, will NSW tolerate the presence on the statute book of the Coalition’s retrospective “validation” of ICAC’s unlawful conduct?
And how long will it be before NSW addresses the plight of thousands of innocent shareholders of Cascade Coal and NuCoal Resources?
These companies were stripped of private property – coal exploration licences worth millions of dollars – without just cause, without due process and without compensation.
If NSW refuses to co-operate with the commonwealth, Dreyfus could use the Constitution’s treaty power to override the state and make the changes himself.
This happened in 1994, when the Keating government used federal legislation to overturn Tasmania’s ban on gay sex in response to an earlier ruling by the UN committee.
The problem, however, extends beyond NSW.
The National Anti-Corruption Commission, which is based in part on the ICAC model, also has no provision allowing people to test the merits of its findings.
So if the government pushes ahead with a charter of rights based on the ICCPR, does that mean it will be changing the NACC to ensure it complies with the proposed charter?
The model charter drawn up by the Human Rights Commission contains a provision that would give effect in domestic law to Article 17 of the ICCPR – the same provision that formed the basis for the UN committee’s adverse finding about the ICAC system.
If the government chooses to do nothing about the NACC, it is accepting the risk that someone will eventually follow Kazal’s lead and complain to the UN committee about the denial of appeal rights at the national commission.
Thanks to Kazal and Robertson, we are now on notice that the denial of appeal rights from anti-corruption commissions is an abuse of human rights.
Judicial review, which looks only for errors of law, is not enough. It must also be possible to test the merits of adverse findings. These commissions are not infallible.
Even if the Kazal affair can be resolved, history shows that a charter of rights, by itself, should not be viewed as some sort of panacea.
Victoria, home of Australia’s first charter of rights, was also home to the nation’s most extensive abuses of human rights during the pandemic.
The World Justice Project’s Rule of Law Index shows Australia ranks ahead of France and the US – which both have charters or bills of rights – on the protection of fundamental rights.
The real threat to human rights is not the absence of a national charter, but abuse of the rule of law – such as retrospective legislation and denial of due process.
