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"A Charter of Citizen's Rights - Will this benefit Multiculturalism in Australia?": Dr Sev Ozdowski OAM (2002)

Rights Rights and Freedoms

"A Charter of Citizen's
Rights - Will this benefit Multiculturalism in Australia?"

Keynote presentation given
by Dr Sev Ozdowski OAM, Human Rights Commissioner at the 2002 FECCA National
Conference on "Setting the Agenda for a Multicultural Australia",
5-7 December 2002, Canberra

It is a pleasure
to be able to address you today and I would first like to acknowledge
the Ngunawal people, the traditional custodians of the land on which we
stand and a reminder that Australia's cultural traditions began at least
40,000 years ago.

Before commencing
I would like to take a minute to reflect on what the recent tragedy in
Bali meant to the victims and especially their families.

Next let me assure
you that today I am not here to speak about my Children in Immigration
Detention Inquiry, although I have just come from a very interesting four
public hearing involving DIMIA and ACM on this subject, but rather to
talk to you about the subject of an Australian Charter of Citizen's Rights
and multicultural Australia.

And on that topic
I would like to acknowledge the pioneering work performed by the ACT in
the general area of a Bill of Rights.

The connection between
an Australian charter of rights and multicultural Australia can best be
summed up as follows: minority groups arguably have a harder time enacting
change thru Parliament, because their numbers, of necessity, don't translate
into a majority of votes. Therefore they will more commonly look to the
legal system for protection and the legal system needs a "menu"
so that it explicitly knows which rights are capable of legal protection.

The Federal Government's
recently legislated package of "Anti-Terror Bills" and especially
the foreshadowed "ASIO Bill" has also focussed the need for
close attention on these issues as never before. Prior to September 11,
the issue, for me, fell into the category of useful but not essential.
With the Australian Government getting even more serious about "the
war against terrorism", as evidenced by this legislation, I feel
that it now falls into the category of absolutely vital.

For many years I
was of the view that Australia with its parliamentary democracy, its independent
judiciary and a free press, provided most of us with an adequate level
of human rights protection; a model for others to follow. Like many of
you here today, I was active on arrival in this country, in remitting
information back to Poland about Australia's democratic traditions and
institutions. A practice which undoubtedly benefited our various mother
countries as they slowly emerged from undemocratic systems of government
and took their first hesitant steps down the democratic road.

But in recent times I have changed my position. I now think that Australia's
democratic safeguards need, shall I say, "freshening up" if
we are to retain a position as one of the freer countries of the developed

Over the last few
weeks we have read accounts of ASIO inspired raids on the homes of people
who fall into the category of a minority group within Australian society.
There have also been calls for the banning of a style of dress which also
falls into the definition I have just used. If nothing else, these events
highlight the importance that attaches to the rights of minority groups
being well documented and clearly understood, especially by the majority
group. This is an important issue for multicultural Australia.

Let me first paint
you a general picture about "rights" in Australia.

What do most Australians
think about their current human rights? The answer to that question is
simply: not very much!! When I address different community meetings across
Australia I am often being asked basic questions about our human rights.
Some people do not even know that we have a Constitution or that it includes
a few basic "human rights", namely: s.80 which provides for
a jury trial in the State where the alleged Federal offence took place;
s.116 denies federal legislative power with respect to religion; s.117
protects residents of one State from discrimination based upon residence,
in other States; s.41 which seems to imply the right to vote, but still
awaits final High Court confirmation.

Then there are the
two "economic" rights, s.92 freedom of interstate trade and
s.51 on payment on just terms for Commonwealth acquisitions of property.
Hardly an inspiring list!!!

No mention for instance
of basic freedoms such as freedom from arbitrary arrest or detention,
right to a fair trial or due process, freedom of association or equality
of all persons before the law.

On occasions when
I move around our community I am told that human rights are un-democratic
and even un-Australian, because they are imposed on us - in violation
of Australian sovereignty - by the United Nations, which in turn is portrayed
as an unaccountable world government.

Very few Australians
know that our country is usually involved in drafting any UN human rights
instrument; that each convention needs to be signed and ratified; and
that, even then, it has no domestic legal status unless conferred by specific
domestic legislation.

However despite the
lack of detailed knowledge of their human rights, Australians have a very
strong sense of social justice. We have a "fair go" culture.
Australians know what is "fair" and how the national cake should
be divided.

And those aspirations
have been confirmed by legislation since Federation.

In fact, Australia's
particular achievement has been the development of a comprehensive system
of protection of economic and social rights. Its foundations were put
in place well before the Bolshevik revolution and long before we ratified
the UN Covenant on Economic, Social and Cultural Rights in 1975.

Economic rights for
adult European males (subsequently partially extended to women but excluding
indigenous Australians for many years) were strongly supported with the
introduction of the conciliation and arbitration system in 1904 and sealed
by the "Harvester Decision" of 1907, guaranteeing a basic wage.

These examples provide
evidence of Australia's historical capacity to box above its weight, especially
in the development of international rights and modelling of world's best

Since the 1970s,
incorporation of international human rights into domestic legislation
has focussed on measures to ensure greater opportunity for social equality.
By now we have federal statutes prohibiting racial, sex and disability
discrimination and recently the Government has proposed to develop age
discrimination legislation.

Australians however
do not have a similar focus on civil and political liberties.

As a result, previous
attempts to introduce a Bill of Rights to protect these values have failed
completely. A recent NSW parliamentary committee inquiry into the issue
went even one step further, by saying that a Bill of Rights would positively
harm public good!!

And there are good
historical reasons for such a culture. The Australian Federation was not
forged in a war of independence or revolution and white Australians have
no history of struggle against massive human rights abuses.

Unlike the French
and US constitutions which were formed by their citizenry with an eye
to restricting the power of government, so as to give the maximum amount
of freedom to the people, Australian states were bought into existence,
literally, by Government action.

Nations established
in violence or ones who've experienced long periods of oppression have
been much more likely to entrench those hard won liberties in their legal
system. Many of you here today have either had first hand experience of
this or have learnt about it from family stories.

But that is not the
experience of white Australia. Gossip from the background to the wheeling
and dealing, that led up to the creation of the Federal Constitution,
even has it that some of our 'founding fathers' were opposed to a statement
of individual rights, because of the potential for racial equality consequences!!

The Human Rights
and Equal Opportunity Commission Act itself distinguishes between civil/political
rights and equality rights. There is a stark contrast between remedies
available in race, sex and disability discrimination versus remedies in
civil and political rights. The courts can adjudicate on equality complaints
when the Commission's conciliation fails. But no court can award a remedy
to civil and political rights violations under the Human Rights Act.

To sum up, the Australian
contemporary human rights culture is strong in terms of protection of
equality rights but weak on civil liberties. In fact, our relative neglect
of civil and political liberties puts us at odds with other first world
countries with which we traditionally compare ourselves.

For example, the
legal protection of individual liberties in the USA is considered superior
because of its constitutional Bill of Rights. It has been the subject
of many books and films. Similarly the European Union- it is a world leader
in protection of human rights.

And there is a clear
trend toward better protection of civil liberties in other first world
countries. Canada adopted its Charter of Rights and Freedoms in 1982 and
New Zealand its Bill of Rights in 1990.

Even Britain adopted
a Human Rights Act in 1998, despite the previously held view that the
common law adequately safeguarded human rights.

Having said that,
I am also very aware that many undemocratic countries have Constitutions
which boast, on paper, their strong adherence to civil rights principles.
The former Soviet Union was one such. The reality is that "civil
rights" enforcement via the KGB is not quite the same as enforcement
by the US Supreme Court!!!

The lack of adequate
legislative protection of civil liberties in this country is now bringing
a range of negative consequences to Australia. To start with it may result
in the erosion of existing civil liberties. Lack of a statutory statement
means there is no yardstick for measurement. It makes both enforcement
through the courts and civic education difficult. It allows executive
power to grow.

The effect of this
was particularly evident in the recent examination by the Senate's Legal
and Constitutional Legislation Committee of the six "anti-terrorism
bills. Imagine how much easier it would have been to gauge the likely
effect of those Bills had there existed a legislative benchmark of "civil
liberties" against which measurement could be made.

Another example:
the rule of law is an important foundation of our society. It means that
disputes are determined under the law by independent judges. It provides
for the supremacy of law over administrative actions. But the legislation
passed by the Parliament in the context of the Tampa crisis abolished
judicial review of many DIMIA decisions under the Migration Act. So some
asylum-seekers are not permitted their day in court.

My recent inspections
of Australia's remote location immigration detention centres at Port Hedland,
Curtin and Woomera tells me that elimination of regular judicial oversight
of administrative detention, especially where it is long-term, is dangerous.
In the year since my last visit to these centres, the mental deterioration
of those people is marked and the atmosphere is more like that of a mental
hospital than an immigration detention centre. The quicker they are shut
down the better.

The lack of legislation
defining our civil liberties means our courts are left with developing
common law in this area. For example, the Australian High Court in 1995
in the Teoh case said that public officials must take Australian ratified
rights under the United Nations Conventions, which are the closest thing
we have in this country to a checklist of civil liberties, into account,
where the convention right is not clearly excluded by domestic law.

And certainly it
is fair to say that the "common law" has in recent times evidenced
capacity to change as the nature and values of society change. Precedents
which conflict with contemporary social values have been more readily

But the courts should
not have a determining role in public policy beyond their responsibility
to interpret the laws as laid down by Parliament. Therefore, it would
be more satisfactory if this process was developed by Australian-own legislation,
drawn from an appropriate mix of UN Conventions and reflecting the Australian

In time this would
produce a body of Australian human rights jurisprudence which would influence
international thinking on these subjects. Another the key issue for Australia,
however, is whether our lack of focus on individual freedoms suppresses
Australia's competitiveness in a globalised economy? There is an enormous
body of evidence that the importance of the individual in any State must
never be underestimated, especially in economic terms.

A current example
is the most successful contemporary world economy, the US. It is characterised
by a minimum of State interference. Individual freedoms are encouraged,
giving rise to "can do" capacity, innovation and collective
reward. Protections are provided by the US Constitution with its Bill
of Rights which allows individuals aggressive pursuit of their rights
through legal action a la Erin Brockovich. However as the Enron and WorldCom
debacles illustrate, a very strong regulatory oversight regime is also

In the case of my
personal experience, the total inability of the communist state to utilise
individual enterprise, innovation and aspirations was undoubtedly one
of the more significant causes of its failure. In other words, individual
enterprise and innovation are one of the key factors in the history of
economic development. To put it simply, they tend to flourish in a culture
where the rights of the individual are respected and capable of self initiated
enforcement. When focussing on Australia, one could say, that by and large
up until the late 1960's, the "Government as big provider" system
referred to earlier in my speech (as compared to individual rights) worked
reasonably well for most white Australians.

But the last 30 years
have produced massive structural changes, in the search for greater economic
efficiency, in the way business, both domestic and international, operates.
Australians find themselves confronting situations where individuality
has assumed far greater importance. Just think about labour market changes
alone. When I joined the public service in 1980 I joined it for life.
Wage centralisation was paramount. Today nobody works in the public service
for life any more and most are on individual performance based contracts.

At the same time,
traditional protections have weakened; trade union membership is declining.
Governments of all persuasions are vacating the traditional "big
brother" roles and pulling back to basic service provision of health,
education and law and order.

Also some of the
other key stakeholders are now performing their roles in a different manner.

The dominance of
the major political parties and the rigidity of their discipline undermine
the prospects of individual protection at the parliamentary level.

The judiciary is
effective BUT limited as Justice Brennan said in Mabo: "in discharging
its duty to declare the common law of Australia, this court is not free
to adopt rules that accord with contemporary notions of justice and human
rights if their adoption would fracture the skeleton of principle which
gives the body of our law its shape and internal consistency."

The media, using
a "squeaky wheel" approach is still capable of championing individual
causes. This is because they have the ability to mould public opinion
and impact on decision makers. But change via media is necessarily a haphazard
approach to public policy and to the protection of human rights.

This loss of traditional
protection from government is not well understood by many Australians
and yet they feel threatened by the changing trends. To them economic
rationalism means loss of control over individual destiny. This partly
explained the attraction of Pauline Hanson - who seemed to articulate
the fears of many ordinary Australians, but failed to provide answers.

So I put it to you
that there is a "civil liberties black hole" at the heart of
this issue.

All systems need
harmony to produce optimal outcomes and harmony requires checks and balances.
It is evident that in contemporary Australia, the capacity for individuals
to protect their own rights has, in time, become severely depleted. This
fact is not widely understood, but we all feel instinctively less secure.
The result is that we become change and risk averse as we try to stop
things spinning more and more out of our personal control.

The nub of the argument
is that governments have been so busy dismantling the old ways in their
drive for efficiency, that they have neglected to erect appropriate new
safeguards for us as individuals.

And yet there is
data to hand that suggests that Australians are growing more comfortable
with the notion of civil rights and freedoms. In opinion surveys over
the last decade or so, we have overwhelmingly agreed on various rights
as fundamental. Some of them received 100% endorsement including freedom
of political speech and freedom from arbitrary arrest.

Further, more than
half of those surveyed believed that their rights are NOT well protected
against unfair government action.

It is also encouraging
to read data that public opinion favours better protection for individual
rights. In 1991, 72% of ordinary citizens surveyed wanted a bill of rights
setting out basic rights and freedoms for individuals. It is possible
that individual Australians are now worrying more, that majority generated
laws, even in a democracy, are not always necessarily "JUST".
Minority groups and individuals can be unfairly oppressed.

So, where do we go
from here? One possible safeguard would be to legislate for our own Australian
Citizens' Charter, in the same way most Australian corporations, even
banks, have done with "Customers Rights". It simply makes good
business sense.

There is a real political
opportunity here for Australians to be re-empowered by these rights. As
a result people will have less to fear from the increasingly interventionist
executive arm of Government, whatever its political colour. I am suggesting
that these rights would provide an opportunity for Government to re-engage
with the Australian people in a tangible way.

So to sum up, I believe
an Australian Citizens' Charter would assist people by replacing some
of the government protections that previously existed, but have now disappeared.
This may then encourage us to react more pro-actively to the global economic
changes that are engulfing us all. This could have profoundly positive
economic implications for individual Australians.

Of course issues
such as the Tampa asylum-seekers incident, September 11, Afghanistan and
now Bali have added complexity to this issue. Australians who believe
in basic human rights are also naturally concerned about their security.

The proposed curtailing
of personal freedoms explicit in the Government's "war on terrorism",
which broadly I think, we accept the need for, makes a "citizens'
charter even more essential. In the absence of a legislated list of existing
rights, it is difficult to measure what we are being asked to give up
when the Government proposes such security measures. We have no easy way
to assess the "proportionality" of their proposals.

But I must sound
one final cautionary note. Recent overseas experience, such as the US
and England, in their anti-terrorist laws post September 11, are more
destructive of individual rights than in Australia. This is despite those
countries having a Bill of Rights. So I am not suggesting that we here
present today could totally relax, if only Australia had a charter of

But multicultural
Australia has much to offer on this issue. Many of you have first hand
experience of regimes which engaged in systematic abuse of the human rights
of minority groups, often using the excuse that it was necessary in order
to protect the majority. We should be prepared to speak about those experiences
so that our fellow Australians, who mercifully, have been largely spared
this kind of behaviour can make a more informed judgement, on the important
issue of a Charter of Citizens' Rights.

updated 16 December 2002

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