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APS Human Rights Network - Speech by Prof. Gillian Triggs (2015)


Thank you for the introduction, and in this glorious atmosphere in Canberra can I also acknowledge the Ngunnawal people, the traditional custodians of the land on which we now gather. I pay my respects to elders, past and present.

Thank you to the Attorney-General’s department for co-hosting this with us, and to the Australian Public Service Human Rights Network, which has been together now for 4 years. We have 700 members and I think it’s really astonishing to have so many people here today interested in human rights as an integral part of our professional role as public servants, so thank you very much for joining us.

I would also like to acknowledge my fellow speakers: Stephanie Foster PSM , Deputy Commissioner, Australian Public Service Commission and Greg Manning, Acting Deputy Secretary, Attorney General’s Department.

The objective of today’s session is to talk about public servants and how they can integrate human rights as part of their work. I cannot think of a more influential group for us to be speaking to, because you are the ones who are really at the front line in terms of interpreting government policy, and carrying it out in a way that is consistent with Australia’s international human rights obligations. I have just read this rather marvellous pamphlet that I’m told you get from the APS as soon as you join the public service, and it talks about APS values. And they are terrific: Impartial, Committed to Service, Accountable, Respectful and Ethical. All the things that the Australian Human Rights Commission cares so much about. But the one I like the most is that the APS respects all people, including their rights and their heritage. So it’s a rights-based analysis of what we’re here to implement and that’s what I’d really like to talk to you about today.

Well, I haven’t got very long to speak so I’d like to get straight to the point:

Operation fortitude.

As I think you’ll all remember, this was an almost paramilitary involvement in civilian affairs a few weeks ago, when the Department of Immigration and Border Protection announced Operation Fortitude, under which a ‘coalition of the willing’ (the Victorian Police, the Sheriff’s Office, the Taxi Services Commission and the Australian Border Force) agreed to target crimes ranging from anti-social behaviour to outstanding warrants of arrest.

The now notorious media release stated that the intention was to position ABF (Australian Border Force) officers at various locations around the Melbourne CBD, speaking ‘with any individual we crossed paths with’. The idea behind the strategy was that if you commit visa fraud, you should know it’s only a matter of time before you’re caught. Well, it’s true that many people in the Australian community do not have a valid visa or have overstayed their visa. It is also true that a nation state has sovereign rights to arrest and deport those who are in Australia illegally. Indeed, the ABF, the police and other law enforcement agencies do so regularly, if quietly under s188 of the Migration Act where probable cause is required. But never before have we had Australian Border Force Officers in black shirts planning to stop people in shopping malls and demanding identification.

Quite apart from the legal fact that the APF do not have the power to do this, it’s a reasonable assumption that those chosen for questioning will be those that fit a racial profile contrary to the Racial Discrimination Act. Do you honestly think they were going to stop me, with my pear earrings and my little jacket outside Myers? Were they going to ask me where my visa was? I really don’t think so.

This was a serious mistake, and acknowledged to be a mistake. Through social media, hundreds gathered within hours on the steps of Flinders street station, and within hours of that Operation Fortitude was cancelled. Sadly, many running for cover: blaming low level public servants for the mistakes.

Now, my question, and this is a tough example to look at, is how did this happen? How is it that with all of the people who must have been involved along the road in this operation, and who drafted the media release, how did they allow it to go so far without someone saying, ‘this is an egregious breach of human rights, and probably in breach of the Racial Discrimination Act, rights of association, of freedom of movement, of the right not to be questioned on the street without probable cause which is absolutely standard policing operations’?

How did this happen, and why?

Well, let’s go back a little in answering this very important question for Australia. And remember that this year has been a very special year. It is the 800th anniversary of Magna Carta, the goat skin document sealed by a probably illiterate King John, but where the key point was made and has been maintained ever since: the sovereign, and executive government are subject to the law, parliament is sovereign, and the judges are there to apply the rule of law. This is ancient principle, it was old before the Magna Carta, but at least we can date the legal recognition of these core principles to 800 years ago.

This year it is also the 70th anniversary of the UN Charter. You might recall from your history lessons, the remarkable man Dr Evatt. Rather feisty, determined, and a brilliant lawyer who understood the importance of the Charter for the future. He worked with Eleanor Roosevelt on the UN Declaration of Human rights and ensured that some of the core principles of the Magna Carta were actually there for everybody to see at that time.

It is also the 70th anniversary of the Nuremburg Trial. The war crimes trials that for the first time in modern history, held individuals accountable for their actions, in particular with regard to crimes against humanity.  

The last point is that this is the year in which Australia has announced its formal bid to be a member of the UN Human Rights Council. The vote I think is in 2017 to take up that position in 2018 for two years. I think it’s a very important initiative by the Australian government and one I think we both deserve to win and should put effort into achieving. But it remains to be seen of course whether we will achieve that.

Well, that is the sort of legal background. But I think the great challenge to deal with in Australia is not the articulation of human rights, they were articulated in the modern context through Dr Evatt and the UN Charter and Human Rights Declaration. We’ve articulated ideas, put them in numerous treaties and declarations since 1945, but where we have fallen down rather badly is that we have failed to implement those human rights obligations within Australian law. We’ve created almost two bubbles of law: Australia has been a keen negotiator of most of those treaties, but most of those treaties have never been implemented as part of our domestic law. We have become isolationists, in some respects we’ve become exeptionalists. We are the only common law country in the world that does not have a Bill or Charter of Rights, our

Constitution protects very few of our human or civil rights. We have a right to be compensated if our property is taken from us, we have a right to vote, a right to freedom of religion. And we have an implied right (by the High Court) to political communication. But we do not have, as part of our Constitution or legislation, a right to freedom of speech as such. So we have very limited rights at a constitutional level, no Bill of Rights, and very little legislation to implement the treaties to which we become party. Except, of course, the Convention on Racial

Discrimination, CEDAW, and the Disability Convention (where Australia led the way by implementing legislation before the treaty was passed).

But except for those three conventions, and then an addition of some domestic law particularly with regard to age discrimination, we have very few protections. We also live in a region of the world which is quite separate from other legal jurisprudence and developments. We have no regional treaty on human rights, we’ve no commission or court, unlike the rest of the world: Africa, the Arab states, North America, Europe and other regions.

We are in a very odd position. And you might be thinking this is a strange thing to emphasise, because Australia is in fact a country that does respect human rights in its practice and in its culture. Operation Fortitude tells us a lot about it. It tells us that there comes a point where, even without legislation or bills of rights or constitutional protections, the Australian people will say ‘that’s gone too far. We may not know what the law says or what the constitution says but we do know that you cannot stop us in the street, without probable cause, and ask why we’re there.’

We have what I think can be quite accurately described as a ‘jigsaw’ of institutions that protect our fundamental rights and freedoms. And one very important part of that jigsaw that I particularly want to emphasise is the role of the Parliamentary Joint Committee on Human Rights.

The legislation for it was passed in 2011, which requires that all Bills have a ‘Statement of Compatibility’ with human rights. It also established a Parliamentary Scrutiny Committee which assesses all new legislation, and existing legislation for that matter, in terms of compliance with human rights law. And for at least the first few years of this new committee, they actually achieved consensus reports. So whether they were Greens, Coalition members, or Labor, all through those early years it was possible for that parliamentary committee to achieve a consensus on those aspects of the laws which egregiously breached fundamental human rights.

Recently, this has tended to be less the case. It has broken down along party lines. But it has still been, I think, one of the most important steps that Australia has taken to integrate the human rights standards that we care so much about, within Australian law.

Then, of course, there is the Australian Human Rights Commission itself. We are an independent human rights institution, established nearly thirty years ago, and we have a very interesting role of calling all Australians, including the government, to account for acts and practices that violate the international treaties to which we are a party. Now given what I’ve just said, you’ll know there’s a very strange disconnect here. Because our job at the Human Rights Commission is to talk about the international treaties, or many of them, to which we are party but have not been brought into Australian law. So although we are saying, not infrequently, that sometimes Australia’s policies breach international law; the Minister, departmental official or a court can say, ‘that’s very interesting that a particular practice breaches the Convention on the Rights of the Child or the International Covenant on Civil and Political Rights or the Refugee’s Convention, but those treaties are not directly part of Australia’s law and our courts cannot give effect to those provisions.’ So it’s a bit like ships passing in the night. We have a job based on international human rights law, but the courts and government and public servants will tend to emphasise domestic law.

That is a difficulty for us. But I’d say 90% of our work is done with the support of government. Especially in the areas of disability, age discrimination, race, gender, sexual orientation, the position of women, and children. Most of that work goes together very well, and it depends to a very high degree on the support of the public service.

May I finish then by just making a point on a case decided in the High Court some years ago in 1995, but that I do like to remind us all about. And that is Teoh’s case. You might recall that Teoh is a case where a man had come to Australia from Malaysia, he’d had a fruitful partnership, many children, and was acknowledged to be a good father and partner. But he trafficked in heroin, he was charged, sentenced and served his sentence in Australia. And on completing that sentence, he was then re-arrested for deportation on the grounds that he failed the character test, and that he was no longer wanted in Australia. That decision was then challenged, and it was said that the Convention on the Rights of the Child which protects the rights to family was a consideration to be made. And you’ll remember that the High Court said that there is a ‘legitimate expectation’ that public servants will be aware of this and other human rights treaties to which Australia is a party. In that case, the rights and primary interests of the child were upheld by the court, and a different decision was handed down.

Now, that’s a factual example, but the key point I wanted to make was that there has been an acceptance by the High Court of the importance of at least looking at, reading and being aware of those international legal obligations. The High Court has withdrawn a little bit from the concept of legitimate expectations, but none the less I think it’s important that educated and committed public servants understand these principles and are able to integrate them. With your leadership and understanding of these rules, you can help integrate us globally and in the region in relation to human rights, to avoid this trend towards exceptionalism, to ensure that events like Operation Fortitude don’t happen again.

Thank you very much.

Professor Gillian Triggs, President