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Rights Rights and Freedoms


Speech by Dr
Sev Ozdowski Human Rights Commissioner

in a New Millennium Policy Forum
Brisbane 29 March 2001


As is customary,
I would like to commence by acknowledging the traditional owners of this
land where we meet today.

I would like also
to acknowledge the many distinguished people who are present here.


Allow me to start
my address by congratulating Uri Themal on bringing this forum together.

This is clearly a
very good and timely initiative. It is also a much-needed initiative as
multiculturalism as a public policy is at a crossroads.

Many of us, who have
worked in the field for a long time, believe that everything that could
have been said about multiculturalism has already been said. We can easily
point to a range of well written policy documents defining what Australian
Multiculturalism is about; just think about National Agenda for a Multicultural
Australia - Mark I and II, Access and Equity Strategy - to name only a

The challenge to
the Forum is we need to think anew. We must think outside the square.
We must come up with new ideas, which will serve multicultural Australia
in the new millennium well.

My contribution today
will focus on the linkage between multiculturalism and human rights.

In particular, I
will argue that multiculturalism has won the hearts and minds of Australians
and that, it is perhaps time, to leave "fortress multiculturalism" and
embrace other movements and institutions that support Australian concepts
of "fair go" and of diversity. I will further argue that human rights
are a natural ally of the multicultural movement.


  • Achievements

is undoubtedly one of the most successful contemporary public policies
of Australia. It has helped to change the face of Australia, the nature
and meaning of Australian democracy and the shape of Australia's relations
with the world.

Post-WWII migrants
arrived to a relatively unsophisticated country, marked by high levels
of racism, acute discrimination and policy of assimilation. Contemporary
Australia is a sophisticated pluralistic society, well adjusted to a globalised
world and with a range of policies and laws prohibiting discrimination.

Ethnic groups can
take credit for significant contributions to this change.

  • Present difficulties

If I suggested that
multiculturalism, as a public policy is not doing well at present, many
of you would agree with me. Some of you would possibly point to structural
changes in public administration, others to diminishing financial resources
or to the changes in the public rhetoric of political leaders as evidence
supporting this observation.

And you are right.
Multiculturalism as a public policy is not doing well:

  • despite the fact that it has been a well established public policy
    for long time; it has been with us at least since the mid-seventies
  • despite the fact that over 70% of Australians, at least according
    to public opinion research, support the policy; and
  • despite the fact that the multicultural complexity of Australian
    society continues to grow as a result of Australia's non-discriminatory
    immigration policy and current refugee intake.


Many proposals could
be advanced to explain the current situation. Today, however, I would
like to ask you to consider the following proposition, which is based
on my experience as CEO of the South Australian Office of Multicultural
and International Affairs for the past five years.

I would like to suggest
to you that multiculturalism became a victim of its success.

  • The second generation

Let us start with
the people for whom many migrants had decided to come to Australia. Let
us start with the children of migrants or the so-called second generation.

When one talks with
people who were born and educated in Australia of migrant parents, the
vast majority of them simply say, "We are Australians". They also say,
"We value our parents' heritage, but we are not interested in participating
in our parents' clubs and organizations".

The vast majority
of them feel comfortable accessing mainstream institutions and participating
in today's multicultural Australia. However, they do not see the value
in participating in the multicultural movement because they perceive it
as limiting their choice the ethnic or multicultural movement.

They take multicultural
Australia for granted, but perceive the multicultural movement as irrelevant
to them or superfluous.

  • The migrants

Let us now look at
the people who made Australia home. They are the unsung heroes of the
multicultural revolution.

By now they are ageing.
Some of their clubs face financial difficulties because their membership
has aged and do not provide as much support as they did a few years ago.
The great communities of the sixties and seventies - Italians, Greeks,
Poles, Dutch, Yugoslavs - are no longer so active in public affairs and
politically influential.

There are no natural
successors to these communities. The new communities established between
the late seventies and now are showing difficulties in taking over the
organised multicultural movement. There are many reasons for this, which
I do not propose to elaborate on today.

  • The mainstream

The Anglo Celtic
part of our community embraced multiculturalism and enjoys its fruits.
One could say that the mainstream becomes an exquisite consumer of multicultural
delights. For example, what is a traditional Australian meal now? Perhaps
20 years ago many of us would have regarded Chinese food as typical Australian
food. Today I would not even attempt to guess what our national food is.
We simply eat everything.

However, despite
the occasional Scottish pipe band or Celtic dance group performance at
multicultural festivals, the Anglo Celtic majority never have become active
participants in the multicultural movement. They enjoy it but do not own

Somehow, the word
ethnic was replaced by the word multicultural but without a corresponding
expansion of the population base of the movement.

Public sympathy for
demands by multicultural groups has also waned. The high moral ground
gained by ethnic communities in the mid-seventies resulted in a range
of policies to redress many factual and perceived injustices of the past.
The focus of these policies was on welfare services and to a lesser degree
on greater cultural freedom.

By now only very
few Australians would regard migrants, especially migrants who settled
here some time ago, as in need of greater welfare. Migrant success in
education, business and arts is unquestionable. For example, post WWII
migrants constitute some 30% of the Business Review Weekly 200 Richest
Australians list.

Migrants are no longer
seen as victims of disadvantage. There is no longer a moral imperative
for the mainstream to help them.

Further, the attempts
by both the Labor and Conservative governments of the last 10 years to
bring multiculturalism into the mainstream have failed. Remember the "multiculturalism
for all", "productive diversity" or "citizenship" campaigns.

In February 2001
Donald Horne pointed out in his Barton Lecture that "the new ideology
of mainstreaming has relegated special interest groups to the margins:
classed as whingers and unAustralian".


I am not convinced
that the national multicultural movement as we knew it will recover in
the near future. I do not see the organisational willpower, the financial
resources or the political climate to accomplish it.

(This does not mean
that I do not support current efforts to strengthen the national ethnic
lobby. I wish FECCA good luck.)

Further, I am quite
sure that Australia will continue to be a diverse society. I would even
argue that this diversity will grow.

I also believe that
Australians of diverse cultural backgrounds need to become much better
integrated into the broader Australian political system in order to participate
fully in decision-making. In particular, they will need to link more closely
with the existing national institutions and mechanisms that support such
diversity. In
fact, they need to form strategic alliances with such pro-diversity forces.

When I was appointed
as the Australian Human Rights Commissioner, my first official engagement
was to present an award during the Human Rights Day celebrations. It was
a very good function with some 300 people in attendance. My biggest disappointment
of the day was that almost none of the ethnic leadership was present at
the ceremony.

Since then, I have
checked various mailing lists and lists of office holders in human rights
NGOs and found that Australians of diverse cultural backgrounds are significantly
under-represented in the human rights movement. A notable exception is
the refugee support movement.

This under-representation
is difficult to understand considering the enormous contribution made
by migrants to Australia's diversity and to human rights movements both
at home and worldwide. Just think about the contributions made by Polish
and Chilean Australians to the re-establishment of democracy in their
home countries.

Thus one could conclude
that the human rights movement is a natural ally of multiculturalism and
offers many avenues, which should be used more frequently in support of


Well, let's take
a brief look at contemporary Australia's human rights protection system.

The Human Rights
Commission is one of a range of Australian institutions created to protect
diversity and secure minority rights. It is responsible for the implementation

  • Human Rights and Equal Opportunity Commission Act 1986
  • Racial Discrimination Act 1975
  • Sex Discrimination Act 1984; and
  • Disability Discrimination Act 1992.

Today I will not
focus either on anti-discrimination or racial vilification measures. This
legislation is well known to many of you.

The Human Rights
and Equal Opportunity Commission Act 1986
gives the Commission responsibility
in relation to 7 international human rights instruments including:

  • International Covenant on Civil and Political Rights
  • ILO Discrimination (Employment and Occupation) Convention
  • Convention on the Rights of the Child
  • Declaration on the Elimination of all Forms of Intolerance and
    of Discrimination Based on Religion or Belief.

Today I will focus
on selected human rights as established by the International Covenant
on Civil and Political Rights. I will discuss in a practical way a number
of its articles that are of direct relevance to the multicultural community.

  • Articles of relevance
    to asylum seekers and deportation

While the Commission
has no jurisdiction under the Refugees Convention, several articles in
the Covenant (ICCPR) can protect asylum seekers if properly applied. For
example, the Covenant should prevent Australia from returning anyone to
a country where he or she risks execution, torture or other cruel, inhuman
or degrading treatment or punishment.

This broad protection
does not depend on that person proving he or she fits the rather narrow
definition of a refugee. It has been applied by the UN Committee Against
Torture to a Somali of the Shikal clan who was set to be returned to Mogadishu
where a rival clan held violent sway.

Another example is
the right to be free from arbitrary detention. As you know, the mandatory
detention policy, introduced by Labor in 1992, has enjoyed bipartisan
support since then. This means that Australia holds all unauthorised boat
arrivals in immigration detention centres - and sometimes in prison -
until either they are given refugee status or removed from the country.

The Commission has
repeatedly advised the Government that the mandatory detention of unauthorised
arrivals beyond the period which can be justified as necessary in the
interests of national security, public health and establishing the detainee's
identity is arbitrary and contrary to Australia's international human
rights obligations.

When the Commission
first published a report on immigration detention back in 1998 there were
some people who had been in detention for more than five years - including
people ultimately found to be refugees by the High Court of Australia.
DIMA has done much to reduce its own processing times and the various
tribunals now prioritise the cases of detainees.

The last provision
I should mention is the right of all detainees to be treated with humanity
and respect for their inherent human dignity. In pursuit of this minimum
standard the Commission regularly inspects the conditions in the detention
centres. We also deal with complaints from individual detainees about
their treatment.

The Commission also
has jurisdiction with respect to the rights of children under the Convention
on the Rights of the Child. An example is the right of every child to
education. The Commission has pushed to make sure that detained children
have a quality education and we are pleased that children from some detention
centres are attending local schools.

The Convention on
the Rights of the Child is proving a significant tool in migration matters,
too, particularly where someone seeks to resist deportation or removal
from Australia. The High Court's Teoh case established that the Government
must take into account the rights of the child when considering deportation.
If the person has Australian citizen children, he or she should always
draw their rights to the attention of DIMA officials. Children have a
right to live with both their parents - the removal of one or other parent
denies them this right. Australian citizen children have the right, too,
to resist removal. If that is the necessary consequence of the parent's
deportation, the child's right is a very relevant factor.

Several cases of
this kind have been raised with the Commission and we are pleased that
DIMA and the Minister are now well aware of their obligations to take
the children's rights and their best interests into account in making
deportation decisions.

  • Articles of relevance
    to religious diversity

The Covenant protects
both the freedom of religion and the freedom from discrimination because
of one's religion. The balance is sometimes difficult to find but each
of these rights is a fundamental one.

In relation to employment
discrimination, the issue of religious beliefs is one that provokes considerable

The relevant articles
of the Covenant need to be explored much more than they have been in the
past. Much of Australia's law and practice continues to be strongly influenced
by the Anglican and Catholic traditions brought by the earliest immigrants.

Some of the complaints
received in the Commission demonstrate how more recently-arrived and minority
religions are neglected in public policy. For example, according to Muslim
tradition bodies must be buried as quickly as possible, preferably before
sundown, shrouded in a cloth and facing Mecca. Many local governments
do not allow traditional Muslim burials. Religious requirements are also
often ignored in autopsies.

  • Articles re enjoyment
    of one's own culture

The Covenant protects
and promotes cultural and language diversity as well as religious diversity
and freedom. Article 27 stipulates that no-one can be denied the right
to enjoy his or her own culture, practice his or her own religion and
use his or her own language in community with the other members of his
or her group. For smaller minorities, especially, this is potentially
a very significant provision. It has been held to require some positive
action on the part of the government to ensure that minority religions,
cultures and languages survive. The possibilities of this provision, however,
have slipped beneath the notice of the multicultural movement.

It is worth noting
again the Convention on the Rights of the Child and another provision
on education. One aim of children's education is to develop in them respect
for their own cultural identity, language and values. We should each reflect
upon the school experiences of our children. Can we say that their education
developed in them this respect? How often did it ignore the contribution
of non-Anglo people to the history and culture of Australia? How often
did it insist on replacing their parents' values as inferior or inappropriate
in their new homeland?

A recognition of the limits
of protection

While advocating
for more use to be made of international human rights provisions, I must
admit that - at present - their implementation in Australia is rather
weak. In particular, the human rights jurisdiction of the Human Rights
Commissioner is limited to actions of the Commonwealth Government. Nor
can a complaint under the HREOC Act be finalised in a court. In this way,
the human rights provisions are weaker than the race discrimination and
racial vilification provisions, which often meet their final determination
in the Federal Court or even the High Court of Australia.

Nevertheless, the
Human Rights Commissioner can receive and investigate complaints under
the Covenant and the Children's Rights Convention, can require a response
from the Commonwealth and can, where necessary, make a report to the Parliament
about that complaint. We also, as you know, take up the full range of
policy issues at a policy level - in submissions, in discussion papers
and reports, and in public inquiries.


My major aim in my
first year in office is to improve Australians' knowledge and understanding
of human rights. I will conduct a national dialogue on human rights commencing
about mid-year. My office will organise meetings in all states and territories
where we will be present to discuss concerns raised by individuals, NGOs
and government representatives. I very much hope, too, that even where
we cannot be present, people will get together to discuss their needs,
the quality of human rights protection in Australia and how that protection
might be improved. And I hope that those meetings will develop submissions
to put to the Commission in writing.

I very much hope
that you will participate as and when you can.


In conclusion, let
me say, that regardless whether a unified ethnic lobby will reinvent itself,
Australian diversity will continue to exist in the foreseeable future.

In my view, Australians
of diverse cultural backgrounds will better learn to use existing human
rights machinery and other civic institutions to protect their cultural
heritage and fight discrimination.

It is important that
government officials responsible for multicultural affairs do not equate
a period of structural change in the ethnic movement with the political
demise of the diversity movement in Australia.

It is important that
they can follow the change and advise their governments of policies appropriate
for diverse Australia.

See Also