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"Human Rights in Contemporary Australia": Dr Sev Ozdowski (2001)

Rights Rights and Freedoms

"Human
Rights in Contemporary Australia"

Speech by Dr Sev
Ozdowski at the United Nations Association of Australia - Tasmanian Branch
- Human Rights Seminar: Human Rights from the Perspective of Individual,
Collective and Corporate Responsibilities,
Saturday 17 November 2001

1. Introduction

I am delighted to
be invited to speak today at the Tasmanian Branch of the United Nations
Association of Australia's Human Rights Seminar. Thank you for your invitation
and your kind introduction.

I would like to acknowledge
the Mouheneena people, the traditional custodians of the land on which
we stand.

Despite its rather
grand title, this presentation will be a relatively modest attempt to
set out the key challenges for human rights in Australia as I see them
at the outset of my term as Human Rights Commissioner. Let us begin with
a quick survey of the state of human rights internationally and in Australia
today.

Part A: Achievements of the
20th Century

1. International developments

At the outset of
the 20th century, human rights as a concept really did not exist. The
notion of citizens' rights was still relatively new - finding their genesis
in the French Declaration of the Rights of Man (1789) and the American
Constitutional Amendments shortly afterwards. But until the end of the
second World War, governments' obligations to their citizens were considered
principally to be internal, domestic, affairs. Action between governments
to protect individuals was confined to establishing rules of armed conflict
- the Geneva Conventions governing the lawful treatment of civilians and
enemy soldiers in war time. This body of rules is known as humanitarian
law. [1]

The conflagration
of World War II and the insidious lead-up to it made it clear to the community
of nations that respect for human rights would be fundamental to securing
future world peace Therefore, the way in which governments treated their
citizens was very much a matter of international concern.

The UN's human rights mandate

The United Nations
was established in 1945 'out of the ashes' as they say of the League of
Nations which had so abjectly failed to avert a second world war. Article
1 of the UN Charter defines one of the UN's objectives to be

promoting
and encouraging respect for human rights and for fundamental freedoms
for all without distinction as to race, sex, language or religion.

The main functions
of the new organization are set out in Article 55:

With a view
to the creation of conditions of stability and well-being which are
necessary for peaceful and friendly relations among nations based
on respect for the principle of equal rights and self-determination
of peoples, the United Nations shall promote:

a. higher
standards of living, full employment, and conditions of economic and
social progress and development;

b. solutions
of international economic, social, health, and related problems; and
international cultural and educational co-operation; and

c. universal
respect for, and observance of, human rights and fundamental freedoms
for all without distinction as to race, sex, language, or religion.

The UN member countries
agreed on the Universal Declaration of Human Rights in 1948 as a first
and initially non-binding statement of human rights principles and standards.
Since then the UN members have worked to articulate human rights standards
as binding on themselves in international contracts or treaties.

The community of
nations, through membership of the United Nations, decides what rights
to enshrine in treaties. It is then up to each country to decide whether
to accept each treaty or not. Australia has been at the forefront of UN
activism and has been prominent among the drafters and the promoters of
human rights treaties. There are very few human rights treaties not adopted
by Australia.

The influence of
regional arrangements should be recognised here, although it is not directly
relevant to Australia. The European Union, the Organisation of American
States and the Organisation of African States all have regional human
rights treaties with regional monitoring and enforcement mechanisms.

What are international human
rights?

Human rights are
based on 'natural law' concepts. They are inherent in each and every one
of us by virtue of our shared humanity. They are grounded fundamentally
in the basic dignity and equality of each human person.

Although human rights
do not derive from governments, their protection and enjoyment depend
on governments to recognise them. Many human rights were protected by
domestic legislation well in advance of the emergence of international
human rights law and the treaty system. Human rights treaties are simply
the mechanisms by which governments agree on those international human
rights they will each recognise for their citizens.

Generally four generations
of human rights are recognised:

1. civil and political
rights

2. economic, social
and cultural rights

3. the right to
development

4. collective rights.

1. Civil and political
rights are those from which the whole philosophy of human rights developed,
namely the protection of the individual from the arbitrary exercise of
power by the state. These are the rights without which we do not recognise
a functioning democracy and include the fundamental freedoms of association,
speech, peaceful assembly, thought, conscience and religion. They also
include the protection of individuals from torture, arbitrary detention,
inhumane treatment and abusive justice processes.

2. Economic, social
and cultural rights are regarded in international law as rights to be
achieved progressively as they become affordable. These rights are concerned
with our material, social and cultural welfare. Here we find the right
to work and to social security, to health care and education. Also, the
minimum labour standards relating to safe working conditions, minimum
leave entitlements and maximum hours of work, child labour and equal pay
for work of equal value.

3. The right to development
is based on the concept that "development is a comprehensive economic,
social, cultural and political process, which aims at the constant improvement
of the well-being of the entire population and of all individuals on the
basis of their active, free and meaningful participation in development
and in the fair distribution of [its] benefits". [2]
The ultimate objective is a new international economic order.

4. The fourth generation
of emerging rights are gathered together as collective or solidarity rights.
They include the right to peace and a healthy environment. [3]
Here too belong rights of peoples - most notably those rights which aim
to secure the cultural survival of Indigenous peoples. [4]

Human rights treaties
when ratified impose an obligation of protection and respect on each national
government and parliament. Specifically, all member countries have voluntarily
undertaken to

  • respect the human
    rights listed
  • refrain from violating
    human rights
  • protect human
    rights from violation by others
  • ensure the enjoyment
    of human rights without discrimination of any kind
  • take the necessary
    steps to give effect to human rights
  • ensure that victims
    of human rights violations have an effective remedy which can be enforced
  • limit fundamental
    freedoms only to the extent permitted in each of the treaties
  • balance the rights
    of individuals where they are in competition with each other.

2. Australian developments
in human rights protection

Australia's system
of human rights protection has evolved according to its own unique history,
and alongside the international human rights system, during the 100 years
since Federation.

The Constitution

Human rights - or
citizenship rights as they might then have been known - were not included
in Australia's Constitution despite the French and US examples. We followed
instead the British model of reliance upon the common law to protect individuals
against abusive interference by governments.

This is largely explicable
by reference to our history - Australia's mostly peaceful development
towards nationhood and independence. The federation was not forged in
war or revolution; non-indigenous Australians have no history of struggle
against massive human rights abuses. Governments established in violence
have been much more likely to entrench those hard won human rights in
their constitutions. But that is not the Australian experience.

This history leaves
aside the violence committed in the establishment of Australian sovereignty
against Aboriginal people. Aboriginal people, of course, were excluded
from the constitutional debates and were not even considered part of the
population for the purposes of the national census.

Just five individual
rights were explicitly recognised in the Constitution:

1. the right to
vote (Section 41)

2. protection against
acquisition of property on unjust terms (Section 51(xxxi))

3. the right to
a trial by jury (Section 80)

4. freedom of religion
(Section 116) and

5. the prohibition
of discrimination on the basis of State of residency (Section 117).

The Constitution
is silent in relation to numerous other rights that are well recognised
in the constitutions of other Western democracies. For example, the Constitution
makes no mention of fundamental freedoms such as the freedom of association,
freedom of movement, freedom of peaceful assembly, freedom of thought,
belief and opinion, and freedom from arbitrary arrest or detention. It
does not guarantee the right to a fair trial or due process, nor does
it ensure equality of all persons before the law.

First Acts

The first act of
the new federal Parliament in 1901 was to pass the Immigration Restriction
Act
and the Pacific Island Labourers Act giving effect to the
White Australia Policy. The federal franchise - the vote - was not extended
to women until 1902.

Economic rights for
adult European males were strongly supported in the early years of the
new federal Parliament with the introduction of the compulsory conciliation
and arbitration system in 1904. The Conciliation and Arbitration Court's
first major judgment - Harvester in 1907 [5]
- established the minimum - or basic - wage as a worker's right and introduced
the national wage fixing system which prevailed in Australia for so many
decades. Women's minimum wage was set at a proportion of that for men
(initially 54%) until the Equal Pay Case of 1972 [6]
while Aboriginal workers were excluded from the process until 1966 when
Aboriginal stockmen were granted equal wages to non-Aboriginal stockmen.
[7]

1960s - 1970s

Despite Australia's
leading role in the development of international human rights standards,
things remained pretty much unchanged at home until the late 1960s and
early 1970s.

The 1967 Constitutional
Referendum helped to change the legal and human rights landscapes of the
following decades. The flowering of ratifications and new domestic legislation
which followed from 1975 owes much to the Referendum debate and its outcome.

In 1975 the Racial
Discrimination Act was passed. This Act implemented human rights standards
into domestic law for the first time: the International Convention on
the Elimination of All Forms of Racial Discrimination.

A Commissioner for
Community Relations was appointed in 1975 to monitor the new Act. In 1981
Australia established the first Human Rights Commission as the mechanism
for implementing the Race Convention and also the Civil and Political
Rights Covenant ratified in 1980.

Also very relevant
was the High Court's re-discovery of the external affairs power - that
provision in the Constitution which gives the Commonwealth control of
external affairs. Section 51(xxix) of the Constitution, the external affairs
power, provides the Commonwealth Parliament with the power to legislate
so as to incorporate provisions of international human rights conventions
into Australian domestic law. States may also incorporate international
human rights principles into state legislation to the extent that such
legislation is not inconsistent with any Commonwealth legislation in the
area.

For decades the external
affairs power was thought to be confined to a power to conduct foreign
affairs including the power to ratify treaties. When the treaty dealt
with a subject the Constitution gave to the States, surely the Commonwealth
could not intrude? The argument was illogical, of course, since one requirement
of treaties is that they be implemented domestically. So the High Court
found in a decision where Queensland challenged the validity of the Racial
Discrimination Act.
[8]

A High Court interested
in an expansive reading of the Constitution has shown interest in finding
that individual rights are implicit in the document - demanded by the
constitutionally-established system of government. Thus in 1992 the individual
right to communicate freely in political matters was recognised. [9]

Part B. Impact of international
human rights law on domestic legislation

1. Instruments ratified by
Australia

Australia has now
accepted (that is, ratified [10]) most of the principal
human rights treaties:

1. International
Covenant on Civil and Political Rights* (including the First Optional
Protocol allowing individual complaints and the Second Optional Protocol
on the death penalty)

2. International
Covenant on Economic, Social and Cultural Rights

3. Convention on
the Rights of the Child*

4. Convention on
the Prevention and Punishment of the Crime of Genocide

5. International
Convention on the Elimination of All Forms of Racial Discrimination

6. Convention on
the Elimination of All Forms of Discrimination Against Women (but not
the Optional Protocol allowing individual complaints)

7. Convention Against
Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment

8. Convention and
Protocol Relating to the Status of Refugees

9. UNESCO Convention
Against Discrimination in Education

10. Freedom of
Association and Protection of the Right to Organise Convention (ILO
87)

11. Right to Organise
and Collective Bargaining Convention (ILO 98)

12. Equal Remuneration
Convention (ILO 100)

13. Discrimination
(Employment and Occupation) Convention (ILO 111)*

14. Workers with
Family Responsibilities Convention (ILO 156)

15. Termination
of Employment Convention (ILO 158)

2. Instruments incorporated
into domestic law

Australia has a relatively
good record of incorporation of human rights treaties. The Race and Sex
Discrimination Conventions are almost fully incorporated in Australian
law in the Racial Discrimination Act of 1975 and the Sex Discrimination
Act of 1984. Of the remaining 13 listed above, the Refugee Convention,
the Torture Convention, ILO 100 on equal pay, ILO 111 on employment discrimination,
ILO 156 on family responsibilities and ILO 158 on unfair dismissal have
been incorporated to a substantial extent in Australian domestic law.
[11]

The others attached
to the Commission's legislation - marked * - are not treated as incorporated
because they do not give rights independently of the Commission's limited
complaints jurisdiction. It should be noted, however, that many human
rights, especially those relating to criminal investigation and trial,
are similar to common law protections well-recognised in Australia.

One reason for our
implementation record to date is the widespread belief that our democratic
system of government, especially with an independent judicial system that
applies and develops the common law are the best protectors of individual
rights. The Prime Minister has expressed this view recently in the Parliament
saying:

The government's
position is that the best guarantee of fundamental human rights in
this country is to have three things in our society. The first [is]
a vigorous and open political system … The second requirement
is to have a due process of law, a judicial system which is incorruptible
… The third [is] to have a free press.
[12]

3. HREOC and the protection
of human rights

The Human Rights
and Equal Opportunity Commission (HREOC) is a national independent statutory
government body established in 1986 by an Act of federal Parliament called
the HREOC Act. HREOC administers federal legislation in the area of human
rights, anti-discrimination and social justice. This includes complaint-handling,
public inquiries, policy and legislative development and human rights
education and training. In raising public awareness of human rights, the
Commission fosters public discussion, and undertakes and coordinates research
and educational programs to promote human rights and eliminate discrimination.

The Commission also
investigates alleged infringements of human rights under the HREOC Act
and alleged infringements of the Commonwealth Racial, Sex and Disability
Discrimination Acts.

a) Equality protection

Equality protection
laws - including anti-discrimination Acts implemented by HREOC - are well-accepted
in Australia. Allegations of discrimination in employment, education,
housing, services and public places can be investigated by HREOC or one
of the State and Territory equal opportunity agencies. Where the parties
cannot come to a negotiated settlement of such a complaint, the complainant
is entitled to take the matter to court for a decision and a remedy, including
compensation where appropriate.

b) Civil and political Rights

Individuals may also
complain to HREOC about human rights violations other than those falling
within the provisions of the Racial, Sex and Disability Discrimination
Acts, where the allegedly guilty party is the Commonwealth. However unlike
complaints under the anti-discrimination laws, even if the Commonwealth
is found to be in violation of human rights, no Australian court can award
a remedy. Certainly the Commission cannot do so. The Commission only has
power to report to the Parliament with recommendations. These reports
may refer to individual complaints or to legislation which operates to
violate the human rights of many - such as Commonwealth superannuation
legislation which discriminates against same sex couples. Although the
Commission's report must be tabled in Parliament, the government is under
no obligation to adopt the recommendations.

Part C. Moving forward on
human rights protection

1. Public opinion in Australia

Public opinion on
human rights has played a crucial role in the development of human rights
protection. For example, the Constitutional Referendum of 1967, which
I referred to earlier, enabled an enormously influential public debate
on racism. Almost 91% of voters agreed to the inclusion of Aboriginal
people in the national census. This new awareness of the fuller dimensions
of the equality ideal flowed on to the greater legislative protection
of human rights in the Racial Discrimination Act and other legislation.
No doubt the White Australia Policy, finally fully dismantled in 1973,
and the damage it caused to Australia's international reputation and business
prospects was also an influence.

Australians are now
pretty comfortable with the general notion of rights and freedoms. We
have a strong core national value of basic justice and fairness expressed
vividly in the 'fair go' ideal. In opinion surveys over the last decade
or so, Australians have overwhelmingly agreed on various rights as fundamental.
Some of them received 100% endorsement including:

  • Freedom of political
    speech - on the process and functioning of government
  • Trial by jury
    - a trial by jury should cover everyone as a fundamental right
  • Freedom of religion
  • Protection of
    ethnic and racial minorities
  • Right to vote
  • Freedom from arbitrary
    arrest
  • Right to work
  • Protection of
    people with disabilities. [13]

Community confidence
in the existence of equal rights in Australia has risen over the past
decade. Almost two-thirds (64%) of 1,522 people surveyed in 1991 believed
that we are yet to achieve equal rights in Australia and about the same
proportion (67%) believed that minorities are unfairly treated in Parliament.
[14] In 1999 a majority believed that equal opportunity
is now enjoyed by women and migrants. [15]

Despite widespread
endorsement of a range of rights, there remain institutional and other
barriers to full protection of human rights through legislation. Those
whose powers would be circumscribed by better recognition of individual
rights - notably our parliaments - are unwilling to make any surrender.
Parliamentary sovereignty is a cherished if little understood ideal. In
1991 a survey revealed that support for a bill of rights was only 57%
among lawyers and 14% among Coalition MPs. Interestingly, 89% of Labor
MPs were in favour of a bill of rights of some kind, 83% favouring a statutory
rather than constitutional model. [16]

The second influence
stalling better rights protection is that 'human rights' have had a bad
press, perhaps since as long ago as the children's rights debates of the
late 1980s. Many people believe that human rights are imposed upon Australia
- in violation of Australian sovereignty - by the United Nations which
in turn is portrayed as an unaccountable world government.

More than half of
1,505 Australians surveyed in 1991-92 believed that their rights are not
well protected against unfair government action. [17]
In contrast with the views of most citizens, 65% of lawyers and 79% of
legislators (both Labor and Coalition) believe that human rights are well
protected against unfair government action. [18] I
really feel that view is overly complacent and possibly even self-serving.

Unfortunately recent
issues such as the Tampa asylum-seekers incident have given rise to some
negative public sentiments in relation to human rights. Such incidents
have however also brought human rights issues to the forefront of mainstream
consciousness, hopefully sowing the seeds for serious open national debate
on the context of human rights within Australian society.

2. Goals to achieve

Australia must now
work towards bringing human rights into the forefront of mainstream debate,
and improving legal protection mechanisms for human rights. The goals
of public support and legal protection go hand-in-hand and must both be
addressed in order to ensure the enjoyment of human rights by all Australians.

a) Legal protection

If we are serious
about developing effective mechanisms for human rights protection,the
next steps in Australia's human rights evolution must be; first, the provision
of effective remedies for Australians whose human rights are violated
and; second, the setting of national benchmarks on minimum standards fully
protected from government interference.

Australia has made
tremendous progress in deciding what the standards ought to be at the
international level and, to some extent, domestically. Now it is time
to turn our attention to enforcement and entrenchment of these standards
for the permanent protection of our expectations and our rights.

The lack of an effective
remedy for rights violations is evidenced by the limits on HREOC's complaints
powers. The contrast with remedies available in race and sex discrimination
cases - not limited to financial remedies- is very stark indeed. One way
to progress could be to give Australian courts the same role and responsibilities
regarding human rights complaints as they have long had regarding race
and sex discrimination complaints.

Reining in government
is much more controversial in Australia as evidenced by our reluctance
to consider the possibilities of a Bill of Rights. It is the absence of
a Bill of Rights which has allowed State and Territory governments to
impose indeterminate sentences and mandatory sentencing. It is the absence
of a Bill of Rights which has allowed the Commonwealth to deny habeas
corpus to people in immigration detention centres.

b) National Human Rights Dialogue

How do we move forward
to the next stages of human rights protection in Australia? My priority
as Human Rights Commissioner will be to progress these issues in consultation
with the Australian people. To take human rights protection to the next
stage in Australian law and public policy it is clearly essential to work
first on attitudes towards human rights. I will undertake and extensive
national dialogue on human rights which will, I think, work in three stages.

First there is a
need for much more extensive and relevant human rights education. Until
Australians have ownership of human rights and know and care about their
own rights and those of others, there is no point talking about improved
implementation. I am encouraged by survey findings that public opinion
does favour 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. [19]

The second stage
of the dialogue will be a discussion about remedies - if rights are violated,
where should the victim be able to seek a remedy and what should that
remedy be?

The third stage will
be a discussion about entrenchment - about drawing the line in the sand
beyond which governments cannot step to infringe our rights and freedoms.
What are those rights we want to entrench and how should we do that? We
need to update ourselves on the new generation of bills of rights and
get over the idea that the US Bill of Rights with its strained interpretations
and excessive litigiousness is the only option out there. Canada, South
Africa and the UK now offer an interesting range of alternatives which
we should investigate for ideas in the development of a genuinely Australian
statement of fundamental values. Ten or 15 years ago, of course, Australia
was only one of many common law countries without a core human rights
charter of some description. Today we are alone among our peers. While
that cannot be the only argument in favour of adopting a bill of rights,
it must be a reason to look at the question once again.


1.
The first of the Geneva Conventions is dated 1864 and covers the immunity
of military hospitals and medical staff.

2.
Preamble, Declaration on the Right to Development (1986) at www1.umn.edu/humanrts/instree/s3drd.htm

3.
See the Draft Declaration of Principles on Human Rights and the Environment
(1994) at www1.umn.edu/humanrts/instree/1994-dec.htm

4.
Note particularly the Indigenous and Tribal Peoples Convention (ILO 169)
at www1.umn.edu/humanrts/instree/r1citp.htm, and the Draft Declaration
on the Rights of Indigenous Peoples (yet to be finalised) at www1.umn.edu/humanrts/instree/declra.htm

5.
Ex parte H V McKay (1907) 2 CAR 1.

6.
In the Equal Pay Case of 1969 - (1969) 127 CAR 1142 - the principle adopted
was 'equal pay for equal work'. This was readily circumvented by labelling
female workers differently - eg women were called seamstresses whereas
men were called tailors. The principle in 1972 was 'equal pay for work
of equal value': (1972) 147 CAR 172.

7.
Re Cattle Industry (Northern Territory) Award (1966) 113 CAR 651.

8.
Koowarta v Bjelke-Petersen(1982) 153 CLR 168.

9.
Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106.

10.
Australia undertakes a two stage adoption process of (1) signature which
indicates intention to become a party in the future and (2) ratification
which makes the treaty binding within a stipulated period. Between signature
and ratification the federal government now undertakes a detailed State
and Territory government consultation process.

11.
Refugees Convention in the Migration Act 1958; Torture Convention in the
Crimes Act 1914 (section 23Q) and the Extradition Act 1988; ILO 100, ILO
111, ILO 156 and ILO 158 in the Workplace Relations Act 1996.

12.
House of Representatives Hansard, 5 April 2001, page 25680.

13.
Social Science Data Archive, Rights in Australia 1991-1992: National Household
Sample (1992, ANU, Canberra); Australian Election Study (1998, ANU, Canberra);
Australian Constitutional Referendum Study (1999, ANU, Canberra).

14.
Social Science Data Archive, Rights in Australia 1991-1992: National Household
Sample (1992, ANU, Canberra).

15.
Social Science Data Archive, Australian Constitutional Referendum Study
(1999, ANU, Canberra).

16.
Social Science Data Archive, Rights in Australia 1991-1992: National Household
Sample (1992, ANU, Canberra).

17.
Social Science Data Archive, Rights in Australia 1991-1992: National Household
Sample (1992, ANU, Canberra); Brian Galligan and Ian McAllister, 'Citizen
and Elite Attitudes Towards an Australian Bill of Rights' in B Galligan
& C Sampford (eds) Rethinking Human Rights (1997, Federation Press)
pages 144-153, at page 147.

18.
Ibid.

19.
Social Science Data Archive, Rights in Australia 1991-1992: National Household
Sample (1992, ANU, Canberra).

 

Last
updated 1 December 2001

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