Australia is currently the only western democratic nation on earth without a statutory or constitutional Bill of Rights.
As we once again witness human rights become a political football, it’s clear we need to catch up to much of the rest of the world on the matter.
The Attorney-General George Brandis recently revealed he may move an amendment to the same-sex marriage bill to include the free speech protections enshrined in the International Covenant on Civil and Political Rights (ICCPR).
This week the Turnbull Government’s determination to bring a discussion of the right to free speech and the right to religious freedom into the same-sex marriage debate was made clear again when it appointed Phillip Ruddock to lead an inquiry into Australia’s current legal protections for religious freedom.
It’s great that this government has suddenly become cognisant of its human rights obligations.
The only problem is they seem to think they can pick and choose not only in which circumstances they consider human rights law important and worth upholding.
They also seem to think they can decide which human rights they want to protect based on their own political convenience.
But that is not how the law works.
Article 18 of the ICCPR protects “the right to freedom of thought, conscience and religion”.
The effect of incorporating this provision into the same-sex marriage bill would be twofold: Legally, it would protect the rights of those who wish to deny services to same-sex weddings to do so without being falling foul of Australian anti-discrimination law.
Politically, it would placate the right-wing conservative elements of the Liberal-National Coalition who have endeavoured to defeat marriage equality at every turn and are making a last-ditch attempt to denigrate the rights of LGTBIQ Australians by prioritising the free speech rights of their opponents.
Liberal Senator Matt Canavan has argued that incorporating this section of the ICCPR into the bill is legitimate because Australia is already a signatory to the international instrument and that the human rights obligations contained within it have been “the basis of Australia and many other Western countries for centuries”.
On the first point, he is absolutely right: Australia has been a signatory to the ICCPR since 1980.
But on the latter point, Canavan is mistaken. Unfortunately, regardless of its signatory status, Australia has a long history of neglecting its human rights obligations with little consideration or consequence.
Australia is very happy to side-step its human rights obligations to the asylum seekers and refugees languishing on Manus Island without electricity, food, water or healthcare. It is happy to deny the rights protection it owes to those indefinitely detained on Nauru, leaving them without the urgent medical attention they desperately need. Some members of the government, such as James Paterson, will even go so far as to actively suggest dismantling existing rights protections for LGTBIQ Australians in the process of drafting a rival marriage equality bill.
In fact, former prime minister Tony Abbott was very fond of saying that his government was sick of being “lectured to” by the United Nations about its human rights obligations. So the suggestion that some MPs wish to amend the same-sex marriage bill to incorporate international human rights protections because these are important human rights obligations to which Australia is subject rings a little false.
On Monday night’s Q&A Brandis cited the creation of the Australian Human Rights Commission as evidence for its commitment to human rights protection. It would be great if this were true, but you might remember that when Commissioner Gillian Triggs called attention to the government’s failure to uphold the rights of refugees and asylum seekers, they tried to run her out of office.
You see, freedom of speech, conscience and religion are not the only rights protected in the ICCPR. Alongside them are the right to freedom from discrimination, the right to freedom from torture and the right to freedom of movement, all of which this government has been happy to ignore when it suits them.
So the problem with Brandis and Canavan suggesting that we incorporate these protections into the same-sex marriage bill is that they do so in bad faith and without a shred of respect for human rights law.
These politicians have no interest in respecting the human rights obligations to which Australia has attached itself by signing the Convention; they simply seek to use the language of human rights law to legitimise their attempt to water down the marriage equality law that Australia voted a resounding ‘yes’ to last week.
Let’s not let them do that.
This attempt to use the language of human rights for cynical political ends is not new to this government. Theirs is a government accustomed to invoking human rights when it is politically expedient and casting them aside when they are inconvenient.
Unfortunately for them, this is just not how human rights law works. In fact, it’s entirely antithetical to the principles of human rights law, and to the rule of law more broadly. The very basis of human rights law is that the rights we enshrine in these international instruments are both indivisible and inalienable.
No human right is created more equal than others, and in so far as they come into conflict – as, for example, the right against discrimination and the right to freedom of religion may, on some occasions – they must be meaningfully and thoughtfully balanced against one another according to well-developed human rights jurisprudence. It is not simply a matter of politicians choosing whichever of the competing rights is more politically convenient and enacting it into law while ignoring its counterpart.
The rule of law tells us that all people, and therefore all rights, must be treated equally under the law. To cynically invoke one set of rights – freedom of speech and religion – while denigrating another – the rights of LGBTIQ Australians to freedom from discrimination – flies in the face of one of the most fundamental principles of our democracy.
Worst of all, these MPs are well aware of how the law works. Most of them are trained lawyers. They know that if this government wants to invoke human rights law, it cannot pick and choose. It is either in favour of fundamental rights protections or it is not. In its recent history, it has demonstrated that the latter is its preferred position. Now it seeks to invoke the language and legitimacy of human rights to achieve a political goal before, presumably, returning to its usual ambivalence to rights protection.
To allow them to do so is offensive to the voluminous body of human rights law we have developed and to the lawyers who work every day to defend it.
The irony in appointing the man responsible for creating and expanding Australia’s cruel network of mandatory immigration detention in the Howard era to head up a human rights inquiry should not be lost on us either – especially not when this appointment happens to occur in the same week that the government forcibly evacuated the Manus Island detention centre and arrested many of the refugees and asylum seekers that had been left there without food, electricity or medical care for weeks.
But here’s the kicker: when I say that this is not how human rights law works, it is certainly not how this law is designed to work. But unfortunately, the current reality is that our politicians are free to pick and choose which rights they want to protect because we don’t have a Bill of Rights.
A Bills of Rights would seek to enshrine human rights law and principles to ensure that politicians are not able to use them piecemeal for political ends. Having this extra degree of human rights protection ensures that governments must makes laws by reference to all human rights principles, and not invoke human rights obligations only when it suits them.
It would mean LGBTIQ Australians would be protected from discrimination no matter how politically expedient their the derogation of these rights might be to a governing party whose ideological fault lines are being laid bare.
So let’s do three things.
First, let’s make sure we call out our politicians when they try and use human rights law to legitimise their ideological point-scoring. If this government is desperate to make the passage of a marriage equality bill about religious freedom, so be it. But we must force them to squarely confront what they are doing: attempting to turn a resounding ‘yes’ vote into a pyrrhic victory for LGTBIQ Australians by turning what should be a step forward for equality into a debate about religious freedom. They must own up to this plot and accept its political consequences instead of hiding behind international human rights instruments they have previously been so eager to ignore.
Second, let’s work towards enacting a national Bill of Rights so we never again end up watching our rights toyed with by a power-hungry executive.
And finally, if this government is really ready to live up to its international human rights law obligations, that’s great news. Let’s make sure they start by saving the lives of the men on Manus Island, before we let them use human rights law to score another point in a drawn-out, desperate fight against marriage equality.