Human Rights Hijacked | 2018 B'nai B'rith Human Rights Address
Emanuel Synagogue, Sunday 15 July 2018
It is wonderful be at Emanuel Synagogue.
This is like home to me.
My grandparents were the third couple to be married here.
My late father John was a board member here for many years.
My name is inscribed on a leaf on the simcha tree – a perpetual reminder of my Bar Mitzvah.
And I hope my son’s name will be inscribed on a leaf when he is older.
The people of this synagogue have held me aloft on my greatest days and held me tight through my darkest ones. I will never forget that.
This synagogue has taught me that scars and wounds are the inevitable signs of a life lived – and that it is in the place of faith that you find a sustaining source of strength for the battles of life.
It was the British poet Sir Henry Newbolt who captured what I think of this sacred place:
“This is the chapel here, my son,
Your father thought the thoughts of youth,
And heard the words that one by one
The touch of Life has turn’d to truth.”
And so it is with me.
It is an honour and a privilege to give this lecture for B’nai B’rith – an organisation that has sought, for 175 years, to engage in the intellectual debates that shape our world.
You understand that long before there’s genocide, there’s violence; long before there’s violence, there’s discrimination; long before discrimination, there’s hate speech; and long before the hate speech, there are ideas that deny the full humanity of other men and women.
B’nai B’rith has sought to engage in the battle of ideas.
I honour your work in seeking to build a world of justice based on our shared humanity, rather than a world of retribution and the triumph of might over right.
Almost forty years ago, B’nai B’rith honoured another Australian politician with the International Gold Medal for Humanitarian Services.
When receiving the award, the winner spoke with a deep sense of unease.
He expressed fears about the reluctance of the West to stand up to and resist the ideology and aggression of the Soviet Union.
In his words, “the Western world is characterised by a great deal of self-doubt, division and illusion” and that it needed
“a strengthening of resolve [as… a] people without an objective are a people lost; a people without faith are a people destroyed; and a people without conviction will not survive.”
He suggested that an antidote to these fears is liberty.
“It is liberty which provides the objective, liberty which allows faith, liberty which sustains conviction. But liberty is not an inevitable state and there is no law which guarantees that once achieved it will survive. Its preservation requires skill, determination and strength.”
The politician honoured that day in 1980 was Malcolm Fraser.
The fears he spoke of, and the liberty he proclaimed would be answered by the new British Prime Minister Margaret Thatcher, the young Pope John Paul II, and weeks later by a new US president, Ronald Reagan.
The Soviet Union has long passed – and so too have Fraser, Reagan, Thatcher and John Paul II –but again, we live in a time when the advancement of liberty is not guaranteed.
Challenges of Today
Today we face new challenges.
The moral leadership of the United States is hidden behind clouds of populism and isolationism.
The politics of anger has captured both sides of the American political divide.
Russia has re-emerged not with communism but with nationalism, territorialism and a hunger to avenge and undermine the world’s democracies through State sponsored ‘fake news’ and state sponsored assassinations.
China is asserting a new place in the world and is actively disregarding the ‘rules based’ order when it decides that order offers it no advantage.
In Europe anti-immigrant sentiment echoes some dark days from the past.
And as social media has allowed people to gather towards like-minded communities, we are witnessing a new tribalism.
Through it all, we are seeing a spontaneous combustion of anger at the intersection of media and politics.
Maybe the flame of anger has always with us, but the internet has given it an accelerant – and every day there are new examples of people being shamed, bullied and harassed.
Most of it happens between people who have never met.
All of this points to a new crescendo of extremes.
It is in this environment that we reflect on the state of human rights.
We do so accepting the axis Malcolm Fraser understood – that genuine respect for human rights and the advancement of liberty are two sides of the same coin.
Human rights and human dignity
The notion of human rights comes from the Hebrew Bible. In the first chapter of the book of Genesis we are taught that we are all created in the image and likeness of God.
From this idea, comes what the former Chief Rabbi of the Commonwealth Jonathan Sacks has called “the radical idea” that whoever we are rich and powerful or poor and humble, we all have equal human dignity.
From this natural law notion comes the modern concept of human rights.
Human dignity is the focus of my work as a parliamentarian. I try to recognise the human dignity of my constituents, my colleagues and my combatants. And I bring the principle of human dignity in my public policy work both domestic and international.
That’s why as a Parliamentarian I moved the only motion in the 45Th Parliament condemning human rights abuses in North Korea – a regime that practices suppression of thought, speech and religion and murders mixed-race children.
It is why I have spoken up in the Parliament against the persecution of religious and ethnic minorities in the Middle East Christian, Yazidi, minority Muslim and Kurd.
It is why I stood up for the Hindu Community and condemned Meat and Livestock Australia when that organisation mocked the Hindu deity Ganesh.
It is why I voted for religious freedom protections in the context of changes to the definition of marriage.
It is why as a member of the committee of inquiry on freedom of speech in Australia I fought for the preservation of sections 18C and 18D of the Racial Discrimination Act.
And it is why I have taken a prominent role in the debate about recognition of Aboriginal and Torres Strait Islander Australians.
Respect for human dignity is what I learned in this synagogue.
Unfortunately we must acknowledge that respect for human dignity is not universal.
Past generations believed that the best defence for human dignity was the creation of international human rights institutions to defend the principle.
The United Nations and the Universal Declaration of Human Rights were embodiments of that hope.
They reflect a post-war revulsion against the unbridled militarism of the Japanese and the perverted science of Nazism.
This universal determination to leave the evil of the past behind was a bold step.
But in recent times, the very apparatus of human rights is being commandeered for political purposes by those who do not share its values or who want to misdirect attention from those who are gross human rights offenders.
Human Rights Council
Today human rights institutions have become instruments of anti-Semitism. Jonathan Sacks has remarked:
“Throughout history, when people have sought to justify anti-Semitism, they have done so by recourse to the highest source of authority available within the culture…Today the highest source of authority worldwide is human rights. That is why Israel—the only fully functioning democracy in the Middle East with a free press and independent judiciary—is regularly accused of the five cardinal sins against human rights: racism, apartheid, crimes against humanity, ethnic cleansing and attempted genocide.”
That is why I applaud the recent decision of the United States to expose the disgraceful behaviour of the UN Human Rights Council – and to turn its back on that Council by walking away.
Members of the UN Human Rights Council include Venezuela, Cuba, China, Saudi Arabia – and until recently, the republic of Congo.
In recent years, hundreds of thousands have fled the Congo – and in April, four new mass grave sites were found containing over 260 bodies. There have been crimes in the Congo so horrible and vile that they are nothing short of unspeakable.
That group - Venezuela, Cuba, China, Saudi Arabia and the Congo – has stood in judgment on Israel – again and again and again.
As the formidable US Ambassador to the UN, Nikki Haley recently said:
“Human rights abusers continue to serve on and be elected to the council. The world’s most inhumane regimes continue to escape scrutiny, and the council continues politicizing and scapegoating of countries with positive human rights records in an attempt to distract from the abusers in their ranks.”
So far this year, the Council has passed five resolutions condemning Israel – and it has condemned Israel in previous years as well. When you tally those resolutions – they are more than the resolutions against Syria, Iran and North Korea combined.
Israel has not starved its people; nor has its Prime Minister killed members of his own family; Israel has not used chemical weapons on its own people or others; and Israel has not sponsored the destabilisation of a region.
Instead a functioning, stable democracy is bullied – and by many who use the cover of human rights.
The absence of the US from that Council sends a powerful message about the Council’s legitimacy.
At least for a season, Australia as a member of the Council has a lonely role to play to try to reform the Council – and if need be, to act in righteous opposition to its excesses, bullying and abuses.
Some might say there are always debates about what human rights exactly are – and there is truth to that.
But in the Human Rights Council we see a blatant attempt by those who oppose liberal democratic ideals to commandeer the apparatus of human rights so that they might hide and obstruct its abuses.
George Orwell wrote in his dystopian novel 1984 of bureaucracies hijacked for ulterior purposes:
“The Ministry of Peace concerns itself with war, the Ministry of Truth with lies, the Ministry of Love with torture and the Ministry of Plenty with starvation. These contradictions are not accidental, nor do they result from ordinary hypocrisy: they are deliberate exercises in doublethink”.
We read Orwell as a warning; they read Orwell as a textbook.
Turning now to the Australian context.
Australia is the world’s sixth oldest continuous democracy with regular, free and fair elections, a respected, independent judiciary and a robustly free press.
We have a whole range of measures both parliamentary and legal to keep government and bureaucrats accountable: from tribunals, Ombudsmen and a series of Inspectors-General to a suite of anti-discrimination and administrative laws.
Here when governments make mistakes inquiries are held, apologies are given and compensation is granted.
Australians should be proud of our approach to human rights and proud of our politico-legal traditions which date back far longer than the traditions of countries and jurists which make human rights law.
But in recent years Australia’s human rights apparatus has lost its way.
Just like international human rights bodies Australia’s human rights institutions have been hijacked by political and legal activists
The politicisation of human rights law ultimately led to the weakening of public support for ss 18C and 18D of the Racial Discrimination Act.
Both the performance of political activists masquerading as lawyers, who brought proceedings which had no real prospects of success, and a Human Rights Commission which failed to exercise its powers, weakened public confidence in the Racial Discrimination Act and has removed bipartisan support from these provisions.
The controversy around ss18C and 18D is a microcosm of what has happened more broadly to our human rights laws and institutions.
The Human Rights Commission – an organisation designed to be one of our most compelling moral voices is under sustained attack because it is, and has pretty much always been, adventurous and partisan.
The Commission’s latest decision to force a bank to pay compensation because it chose not to employ someone who had been convicted of child pornography offences left me shaking my head.
No institution can survive without broad community support and the Human Rights Commission, is skating on thin ice.
Too much of its output fails to pass the pub test.
Unfortunately, some of the same thinking is now infecting the Parliament.
Parliamentary Joint Committee on Human Rights
I wish to turn now to a discussion of the Parliamentary Joint Committee on Human Rights.
I have served on this committee throughout my two years in this parliament. It is the single most unsatisfying aspect of my work as a parliamentarian.
What I am about to say is not meant as a reflection on any member of the committee (past or present) nor the professional officers or advisors who comprise the secretariat. They are all attempting to discharge their duties as best they can.
My critique is not of the individuals but of the structure and functions of this unusual committee.
First some background.
In 2010 following an extensive consultation process the Rudd Government chose, correctly in my view, to reject proposals to introduce a federal bill of rights.
However, in order to placate the supporters of the bill of rights in his caucus, the Rudd Government established the Human Rights Parliamentary Scrutiny Act.
This Act establishes the Joint Standing Committee on Human Rights whose role it is to examine and report on all Acts, Bills and legislative instruments, for compatibility with human rights.
It requires that every bill – and I mean every bill – be judged against seven international human rights agreements.
- the International Convention on the Elimination of all Forms of Racial Discrimination
- the International Covenant on Economic, Social and Cultural Rights
- the International Covenant on Civil and Political Rights
- the Convention on the Elimination of All Forms of Discrimination Against Women
- the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
- the Convention on the Rights of the Child and
- the Convention on the Rights of Persons with Disabilities
Most Australians will be unaware of the existence of these treaties and fewer Australians will know about their content but today they are the yard stick against which every federal bill or regulation is measured.
For instance, Australians are probably unaware that while these treaties have no protections for freedom of contract or property rights - the rights on which our entire Australian legal system is based, these treaties do protect the right to ‘enjoy the benefits of scientific progress and its applications’ the right to holiday pay, paid maternity leave; free education; the right to social security; and the right to an ‘adequate standard of living’.
These things might be nice to have but really would most Australians consider them to be human rights? And more so than the right to property and freedom of contract?
But unfortunately, these agreements then become the yard stick for everything from telecommunications policy to tax reform.
And not just the treaties but their interpretation by bodies like the Human Rights Council – the poisoned fruit of that poisoned tree – is now impacting on Australian law.
And the assessments are not made by Parliamentarians – they have been outsourced to bureaucrats in the name of the Parliament – and here lies the crux of the failure of this committee.
Counting the Council of the National Library of Australia I serve on seven parliamentary committees and chair one of them. In addition I serve on three government back bench committees and chair one of them.
In general committee work is immensely satisfying – it is some of the best work I do as a Parliamentarian.
Committee work provides an opportunity to use your grey matter, life experience and skills to scrutinize legislation in great depth, to formulate new policies, to hold agencies to account, to test propositions with expert witnesses and advocate for policy change.
Perhaps best of all committees provide the opportunity to work with a range of colleagues from across the political spectrum usually although not always on a bipartisan basis. And you are able to be a little more independent as the strictures of party discipline tend to be loosened on a committee. The committee system is one of the great vehicles for reform in the Parliament.
Integrity is important to me.
As a parliamentarian you are asked to make compromises every day but as much as possible you try to maintain the set of values which have propelled you into the parliament.
Therefore when you serve on a committee it is important that its report reflects your views – it is your name on the report after all – otherwise you make a supplementary or dissenting report.
But the Human Rights Committee operates differently to every other committee in the Parliament.
In fact, I do not believe it is truly a committee of the Parliament.
I believe it is a bureaucracy that has appropriated the name of the Parliament.
The Committee is about bureaucrats judging Parliament, rather than the Parliament judging human rights.
Often the committee’s reports provide merely a collateral attack on the government’s legislative agenda in the form of rehashed talking points from left wing and social justice groups that have no connection to ‘real’ human rights.
Every report finds fault with government legislation and even when you agree with the legislation and do not think the scrutiny report is fair you are told ‘this is not about the rights or wrongs of the legislation this is merely a technical assessment of the human rights implications of the law.’
On the Human Rights Committee you don’t exercise your grey mater. You don’t have any real discretion to change the report. You are not presented with alternative views and evidence which you can test and weigh up.
But by removing discretion the committee represents an attack on the fundamental liberties for which the parliament is supposed to stand.
It was the British philosopher parliamentarian Edmund Burke who said in 1774 "Your representative owes you, not his industry only, but his judgement” and in this committee members are not able to exercise their judgement.
Dissent is discouraged and dissenters are ridiculed. Instead committee members just show up to rubber stamp a report prepared by unelected human rights lawyers.
The committee is supposed to be based on dialogue theory but it is a dialogue where one party does all the talking and the other party has stopped listening.
Despite its claim to a dialogue with the parliament no government member has mentioned the reports in a substantive way in debate in the life of this parliament.
And of the hundreds of bills passed by parliament this committee’s reports have only been raised substantively on 13 occasions in highly politically contested bills, where the report was used as a footnote or a debating point by opposition parliamentarians who had already decided to oppose the bill for other reasons.
If the intent of the committee is to improve legislation it goes about it in the wrong way.
When the committee criticises ministers for failure to comply with human rights, the minister has no warning of the committee’s ultimate finding until the report is published in the House, and then often only finds out about it from a journalist asking them a question.
A number of cabinet minister have complained to me about the “gotcha” aspect of the committee and the amount of staff time it takes to comply with the requests of the committee on arcane points of human rights law.
The cost of complying with the human rights compatibility statements - which are almost universally unread and unloved by parliamentary colleagues - and complying with the correspondence of the committee is significant.
Protecting the rights of offenders
The Committee’s priorities for whose rights it wants to protect are also out of line with broader attitudes in the community. Two examples will suffice.
Recently the committee did a human rights assessment of legislation relating to cashless welfare cards.
These cards limit the rights of recipients to use their welfare payment for alcohol or gaming – and by limiting cash they also restrict the use of payments for illicit drugs as well.
The initial evidence in Australia as well as overseas is that cashless welfare cards make communities and families safer.
For many of these families, the most dangerous day in any fortnight is the day the welfare payment arrives – because it’s the day that dad goes for a binge.
According to the Committee’s report, the cashless welfare card trial ‘limits the rights of social security, the right of privacy and family and the right to equality and non-discrimination’.
There’s no mention of the right of a woman or child not to bashed by a husband in a drunken rage, nor the right of children, rather than the pokies, to be fed.
This committee always puts the rights of the offender over the rights of the community.
To give another example the Government introduced legislation to require a minister to deny travel documents for a child sex offender who is on the register of child sex offenders with reporting obligations. The offender on such a registry cannot travel overseas without permission. The legislation is designed to protect the rights of children in foreign countries from abuse by child sex tourists.
But the committee report was more concerned with the offender’s right to freedom of movement, the offender’s right not to be separated from their own family members, and whether the prohibition of the offender’s travel amounts to a “criminal” punishment.
I don’t want to be part of a committee that elevates the rights of dead beat dads and child sex offenders and fails to consider the safety of the community.
By seeing human rights in almost every piece of legislation – the Committee has become the boy that cried wolf.
I contrast the Joint Committee on Human Rights with the work of the Joint Committee for Intelligence and Security on which I also serve.
Recently, both committees had to deal with the Government’s legislation on foreign interference.
The issue of foreign interference is a modern phenomenon that goes to the heart of how liberal democracies operate in our inter-connected world.
It is an issue that is vital, that is fraught and requires deep thinking and debate.
The Human Rights Committee published regurgitated third party talking points warning the Parliament of the human rights dangers of seeking to protect our country from nefarious outside state sponsored influence. It considered its report in a matter of minutes.
By contrast, the Joint Committee on Intelligence and Security debated and engaged with the real challenges that we face as a nation. It took seven months held six public hearings and two private hearings, reviewed 92 submissions had months of internal debate among committee members. It sought to balance liberty and security with the fine details of the law sifted over. The committee made over 50 recommendations to improve the Bill.
This is the Parliament at its best.
As a parliamentarian, I can say that I saw a better bill emerge. I saw a wiser bill emerge. And I saw a Parliament that acted like a wise parent to the Executive rather than a tired nagging critic.
The committee must go
I entered the Parliament to bring my independent judgement to issues within a political context and do my best to arrive at a solution though investigating issues and weighing competing interests and principles.
Our Parliament is the embodiment of the hopes of 25 million Australians. It is the cornerstone of our democracy.
Those who serve in it have not just a responsibility to their communities, but to the nation and to history.
You cannot and must not outsource this deep responsibility.
Rather than increasing support for human rights in the Australian parliament the committee is eroding support for them by discouraging parliamentarians to think deeply about the specific challenges of human rights.
I don’t believe this committee achieves anything good for the parliament, the public or for human rights in Australia or elsewhere.
I don’t believe the operation of the Committee is consistent with our Parliamentary system and I don’t believe it does anything to advance human rights.
That’s why I am calling for the Joint Committee’s abolition.
In abolishing the Parliamentary Joint Committee the Parliament would not be turning its back on human rights but it would be turning its back on the bureaucratisation of human rights.
Parliament already has another well-functioning human rights committee, the Human Rights sub-committee of the Joint committee on Foreign Affair Defence and Trade, that does good work producing reports into the death penalty, the empowerment of women and girls, religious freedom and live organ transplants. It should continue to be a forum to draw such matters to the attention of the Parliament.
But the protection of human dignity should never be outsourced – to domestic or international bureaucracies. The very notions should run through the conscience of every person who sits in an Australian Parliament.
The presence of the Joint Committee on Human Rights, inspired not by an Australian tradition but by international bureaucracies, is a symptom of “self-doubt, division and illusion” and represents a loss of liberty of the sort Malcolm Fraser was warning against.
What about Reform?
Some might say: “Why abolish the committee? Why not reform it?” The committee is beyond reform for three reasons first because it elevates treaties (and their interpretation by dubious bodies like the UN Human Rights Council) which have received little public debate such that every law is assessed against them. Australians have never agreed that the right to holiday pay or to the benefit of scientific progress are such important rights that they need to be elevated and given effectively such quasi-constitutional status.
It is one thing for Australia to report on its progress in implementing these treaties it is another thing to assess every piece of legislation against them. When we signed these treaties no one would have expected them to be used for this purpose.
Second equating real human rights abuses like massacres in Syria with asking a drunken sailor in Jervis Bay to take a random breath test, and calling the latter a breach of human rights cheapens the real abuses.
And third other committees are actually doing detailed work considering real human issues through orthodox committee processes weighing up evidence and submissions with committee members exercising discretion and making recommendations to improve legislation such that this committee’s very existence makes a mockery of the Parliament’s consideration of human rights.
I believe and have always believed that the best defence of human rights in our country rests with parliamentarians who are willing to uphold Burke’s principle – and who are willing to question or engage in debate.
Rigorous debate will test out the issues, refine them and advance them in the public’s mind.
By trying to turn everything into a human rights issue the current Human Rights Committee is trivialising them.
I know that this argument does not easily sit with many in this room – because the world once had a hope that institutions would be what protected us from the calamities of the past.
Instead, I am coming to a different conclusion – and that is the best defence is not an unaccountable bureaucratic institution, the best defence is men and women willing to stand in the public square and put a defence for human dignity.
And that starts with the Parliament.