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Australian Lawyers Alliance Conference (2009)

Rights Rights and Freedoms

Australian Lawyers Alliance Conference

Graeme Innes AM - Human Rights Commissioner

20 March 2009


I begin by acknowledging the traditional owners of the land on which we meet
today.

As lawyers who work every day with ordinary people, you will all have first
hand experience of the value that we, in Australia, place on human rights. You
will also be acutely aware of the significant gaps in human rights protection in
Australia.

I was impressed to read on the Australian Lawyers Alliance website that
fundamental to your organisation is the 'protection and promotion of justice,
freedom and the rights of individuals'. Your organisational aims are all about
human rights:

We promote access to justice and equality before the law for all individuals
regardless of their wealth, position, gender, age, race or religious belief. We
oppose oppression, and discrimination, and support democratic systems of
government, and an independent judiciary.

In Australia we're right in the middle of exciting times for human rights
protection. The National Human Rights Consultation is underway. Already, on
talkback radio, we've heard about the rights to sleep-in on Sundays, to wear
thongs anywhere I please, and to climb my neighbours fence to get my ball
back.

More seriously, though, this week, we've had the Community Roundtable event
in Sydney, attended by staff and members of the Australian Lawyers Alliance. It
was a colourful and lively event. There were debates about whether Australia
should have a Human Rights Act, and debates about the difficult job of balancing
different sets of rights. Ordinary people came and told the Consultation
Committee how they thought that rights should be protected in Australia.

One of the great benefits of this consultation is the conversations about
human rights being sparked across Australia. We need to keep talking about our
rights, and how we want to see them protected.

I'm not going to give you a lecture today on the detail of Australia's
current mechanisms for protecting human rights, and its inadequacies. Rather,
I'll start by describing what the government's 'Choose Australia' website says
about human rights. This website is designed for people considering migrating to
Australia. It provides a list of what it calls 'basic rights that all
Australian's enjoy', and then outlines five 'fundamental freedoms' which it says
'all Australians are entitled' to, including freedom of speech, association,
expression, assembly, religion and movement'.

Now it's clearly true that Australia is a great place to live: for most of
us, most of the time. Most of us do enjoy these freedoms.

But none of these freedoms are adequately protected in Australian law. As you
will know, the Australian Constitution provides very limited protection of human
rights. And while Australia remains the only liberal democracy without a Human
Rights Act, all Australians remain vulnerable to breaches of their human
rights.

Let's take the example of freedom of speech. Most Australians would be
astonished to know there is no national law that protects our freedom of speech
in Australia. While our Constitution protects freedom of political communication
as an 'implied right', this protection doesn't extend to other forms of
communication.

And freedom of speech is not always respected in our laws. For example, in
its 2005 package of anti-terror laws, the Commonwealth government introduced a
range of sedition laws. An Australian Law Reform Commission review heard
widespread concern, that these laws had the potential to overreach, and inhibit,
freedom of speech, and freedom of association. Consequently, it recommended
there be a 'bright line between protected freedom of expression - even when
exercised in a challenging or unpopular manner - and the reach of the criminal
law'. The federal government has announced that it intends to implement all of
the Australian Law Reform Commission's recommendations.

In Townsville, Queensland, a man was arrested and fined after proclaiming his
views on a street corner. He spoke loudly for 15 to 20 minutes on a range of
subjects, including bills of rights, freedom of speech and mining and land
rights. He ended up in custody after not paying his fine. He complained to the
United Nations, who found that his freedom of expression had been unreasonably
restricted.

Freedom of expression has also been limited by NSW regulations, which for the
week-long World Youth Day celebration, gave police the power to control the
behaviour of people who might annoy the Pope and other Catholics. This
regulation clearly restricted the right of people, who wanted the freedom to
express their views about the attitude of the Catholic Church to issues like
pre-marital sex, and homosexual relationships.

Another example of a restriction of freedom of expression can be drawn from
the experience of Commonwealth public servants. In their capacity as private
citizens, these public servants wanted to participate in the day of action,
protesting proposed changes to workplace laws - a classic example of freedom of
association and expression. Yet senior public officials thought it was
appropriate to restrict their capacity to take leave from work, to which they
were entitled.

These last two examples do show the common law at work - the outcome of court
cases in each of these examples enabled these rights to be exercised. However,
We can do better, in creating a rights respecting culture, to prevent these
human rights violations from occurring in the first place.

Australia needs a Human Rights Act.

A Human Rights Act would be an important statement of the human rights that
should be promoted and protected in Australia. It would provide a framework for
how human rights should be protected. It would require Parliament, the
Executive, and the courts, to all have greater regard for human rights, as they
engage in the business of government. It would make a difference to the lives of
ordinary Australians.

One of the main benefits of a Human Rights Act, is that it would require
Parliament to assess whether new laws infringe basic rights, and fundamental
freedoms. This would lead to greater transparency, and arm the public with
better information about parliament's decision-making processes. Faced with
pressure from a well-informed public, parliament may not have passed the
sedition laws that I described earlier, in a form that was so restrictive of
freedom of speech.

A Human Rights Act would also require the Executive government to consider
the human rights impact of all policy proposals. And where possible, courts
would be required to interpret legislation consistently with human rights.

Of course, not all rights and freedoms are absolute. International human
rights law contemplates restrictions of certain rights and freedoms, as long as
they are explicitly included in our laws, and they are necessary to protect
national security, public order, public health, morals, or the rights and
freedoms of others. For example, if there is a national security crisis, it
might be reasonable to restrict freedom of movement. It's certainly reasonable
to restrict speech that incites racial hatred, or exhorts others to violence.

The problem, as the stories of laws I have told illustrate, is that our
parliaments are currently not required to consider whether they are restricting
human rights when they make these laws. A Human Rights Act would change
this.

I want to return to the situation of ordinary people in Australia. Experience
from other jurisdictions tells us that a Human Rights Act will have a positive
impact on the ability of ordinary people to assert their rights. And they won't
always need to go to court to do so. There are numerous examples from the United
Kingdom, of situations where ordinary people have employed human rights language
in discussions with government authorities about their treatment.

Let's start with the story of a woman who fled domestic violence with her
children. The woman's husband attempted to track the family down, and they moved
towns whenever he discovered their whereabouts. The family eventually arrived in
London, and were referred to the local social services department. Social
workers told the mother that she was an 'unfit' parent, and that she had made
the family intentionally homeless. They said that her children had to be placed
into foster care. An advice worker helped the mother to challenge this claim, on
the basis of the right to respect for family life. As a result, the family were
told that they could remain together, and that the social services department
would provide the deposit, if they could secure private rented
accommodation.

Many other UK examples demonstrate the impact of a Human Rights Act, in
protecting the rights of older people, and people with disability. For example,
a consultant came across an older woman on a hospital ward in London, who was
crying out in distress. The woman was in a wheelchair, and when the consultant
lifted up her blanket, she discovered that the woman had been strapped in, and
that this was why she was so upset. Staff explained that they had fastened her
into the wheelchair in order to stop her walking around, because they were
fearful she might fall over and hurt herself. The consultant told staff that
while their concerns were understandable, strapping her into a wheelchair for
long periods was an inappropriate response, because her human rights had not
been taken into account. She pointed out that this could be considered degrading
treatment, given the impact on the woman. Staff quickly agreed to unstrap her
and, after she was assessed by a physiotherapist, they were encouraged to
support her to improve her mobility.

In another example, a physical disabilities team at a local authority had a
policy of providing support to service users, who wanted to participate in
social activities. A gay man asked if a support worker could accompany him to a
gay pub. His request was denied, even though other heterosexual service users
were regularly supported to attend pubs and clubs of their choice. While
receiving human rights training, the man's advocate realised that the man could
invoke his right to respect for private life, and his right not to be
discriminated against on grounds of sexual orientation, to challenge this
decision.

Moving closer to home, let's take the example of a recent Victorian case,
regarding the rights of people with a disability. The Victorian government had
refused to accept that autism was a disability, for the purposes of providing
special educational services. A mother with an autistic child, who had been
deprived of these services, took her case to court. A fortnight before the case
was to be heard, the government conceded its mistake, and provided extra funding
for autistic children in school.

All of these examples show how a Human Rights Act can make a difference to
the lives of vulnerable people, who are unfairly disadvantaged. What these
examples demonstrate is that a Human Rights Act can lead to cultural change, and
human rights breaches should be less frequent as a result. Government
authorities will be required to make sure that their policies and procedures
pass the human rights test. Public servants working in government departments
should have human rights training.

However, most importantly, a Human Rights Act will help ordinary people, and
their advocates, to develop a human rights language, to use when talking with
government authorities, about any aspect of their treatment that they feel is
unfair.

International human rights law requires that there is an effective remedy,
when human rights are breached. Currently, all too often, there is no effective
remedy. The Australian Human Rights Commission currently receives human rights
complaints: where the Commission is unable to conciliate the complaint, and
finds that there is a human rights breach, we write a report that is tabled in
Parliament. However, our recommendations are not enforceable.

These reports have found breaches of human rights in a variety of situations.
Some of them, including one tabled in Parliament just this week, are about the
treatment of people held in immigration detention.

An Australian Human Rights Act should give a person who believes his or her
rights have been breached by the actions of a public authority, the right to
take legal action against the public authority. And if a breach of human rights
is found, something should be done about it. The human rights breach should be
stopped, and there should be a right to seek reparations, including
compensation, where necessary and appropriate.

In Australia, we can do better. We should no longer be in a situation where
there is no effective remedy when human rights are breached.

I know that there are divergent, and sometimes heated, views about the best
way to protect human rights in Australia. Many of you will be aware that The
Australian newspaper is running a campaign against a Human Rights Act for
Australia.

The most commonly repeated refrain of those who oppose a Human Rights Act is
that it would take power away from our elected representatives, and give it to
unelected judges. This is wrong, and a classic weapon of mass distraction.

A human rights act is fundamentally democratic. It would not, as many
commentators would have you believe, transfer power to judges. The Human Rights
Act would be an ordinary piece of legislation. The last word would always stay
with Parliament.

A Human Rights Act would not give courts the power to strike down
legislation. Rather, in the situation where a law could not be read consistently
with human rights, courts may make a 'declaration of incompatibility'.
Parliament would have the final say, regarding whether to amend the law to
resolve the incompatibility. However, it may be required to justify a decision
not to amend a law that breaches human rights.

Through this dialogue process, human rights would play a more prominent role
in public debate. A Human Rights Act, far from transferring decision-making from
Parliament to the Judiciary, would actually enhance democracy, by requiring
Parliament to openly consider the human rights impacts of legislation. The
public would have better access to information about decision-making processes,
enabling voters to make informed choices. This would make our elected
representatives more accountable.

A Human Rights Act would simply cement, in Australian law, the basic
standards of dignity, equality and fairness, that the government has already
agreed to uphold, through ratifying the major international human rights
treaties.

I'd like to finish today, by encouraging you all to get involved in the
debate. The Australian Lawyers Alliance has played an important role, in a
coalition of organisations supporting a Human Rights Act for Australia, the
Australian Human Rights Group.

However, don't leave it to the Alliance. We all have an important role to
play, in making sure that human rights are better protected in Australia. If
you, or someone you know, has a parent in an aged care facility; a child with a
disability; a friend or relative with a mental health problem, a teenage child
who gets into a scrape with the police, or a family threatened with separation
because they couldn't find appropriate housing - then human rights matter to
you.

All Australians should have access to appropriate education and health care.
We should all have access to water, food and adequate housing. Our children
should feel safe at school. People living in aged care homes should be treated
in a way that respects their dignity. Everyone in a wheelchair should be able to
use public transport, and enter the same buildings as everyone else.

I encourage you to make a submission to the National Consultation. Tell them
about what human rights matter to you, and how you want them protected. Tell the
stories that you know of ordinary Australians. Show the Committee the damaging
impact of inadequate human rights protections. Most importantly, offer the
Committee solutions. Show them how a Human Rights Act would make a difference.
Tell them about the kind of Australia in which you would be proud to live.

I'm encouraging everyone I know to participate in this important national
discussion. I urge you to do the same.

Thanks for the chance to speak with you today.

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