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"The local face of global justice policy": Dr Sev Ozdowski OAM (2004)

Rights Rights and Freedoms

"The local face of global justice
policy"

Lecture to the RMIT students of
the Department of Justice and Youth Studies

By Dr Sev Ozdowski OAM, Human Rights
Commissioner, Melbourne, 16 April 2004


1. Introduction

Firstly I would like to acknowledge
the traditional custodians of the land on which we stand and by so doing remind
ourselves that Australia's cultural traditions stretch back many thousands of
years and express our aspirations for Australians of the future to be socially
just and inclusive.

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 this point in our development.

I will begin therefore with a quick
discussion about:

1. The meaning and origins of human
rights.

2. Then I will briefly describe
the international human rights system and

3. finally I will discuss our domestic
human rights situation.

What do we understand by human
rights today?

In contemporary Australia many people
may have a range of different ideas about what human rights actually mean to
them. For example, not that long ago somebody complained to me that his rights
are being infringed because of a barking dog in his neighbourhood. I found it
rather a novel approach to human rights, but perhaps he has got a point..

Australians would, however, generally
agree that every person has inherent dignity and value and that human rights
help us to recognise and respect the fundamental worth in ourselves and in each
other.

We would also agree that human rights
are the same for all people everywhere - male and female, young and old, rich
and poor, regardless of our background, where we live, what we think or what
we believe. This is what makes human rights 'universal'.

Australians do recognise that human
rights are important. They recognise our freedom to make choices about our life
and develop our potential as human beings. They ensure that we can live free
from fear of harassment or discrimination. We would argue that human rights
exist even if governments or other people attempt to deny them.

We possibly also agree that respect
for human rights helps build strong communities, based on equality and tolerance,
in which every person has an opportunity to contribute. Of course, having others
respect our human rights comes with the responsibility that we respect the rights
of others.

Where do human rights come from?

Australians also differ in their
understanding of where human rights have come from. Some of us point to religious
origins, others to "natural law" as a source, and some see them simply as hard
won concessions from the State.

I would possibly subscribe to the
last school of thought.

Looking at the history of ideas one
can conclude that human rights are not a recent 'invention'.

Ideas about human rights can be traced
back thousands of years to the values developed by ancient civilizations and
the teachings of the world's major religions.

Ideas about justice and democracy
were all important in Greek and Roman societies, giving political rights - and
duties - to free male citizens.

The Magna Carta, set down by King
John in 1215 under 'considerable duress' from his political foes, was another
important statement of rights - acknowledging that free men are entitled to
judgment by their peers and that even a sovereign ruler is not above the law.

A significant development in human
rights took place in the 18th Century against the backdrop of revolution and
emerging national identities.

The American Declaration of Independence
(1776) was based on the understanding that certain rights, such as 'life, liberty
and the pursuit of happiness', were fundamental to all people.

The French Declaration of the
Rights of Man and the Citizen
(1789) challenged the sovereignty of the aristocracy
and recognised the 'liberty, equality and fraternity' of individuals.

These values were echoed in the United
States' Bill of Rights (1791), which recognised freedom of speech, religion
and the press in its Constitution, as well as the right to 'peaceable' assembly,
private property and a fair trial.

It is important to note that at that
point of our collective development, the recognition of these rights was left
to the nations to work out independently. Or in other words, the actual protection
and enjoyment of human rights depended on national governments to recognise
and implement.

2. Emergence of International Human
Rights

So, at the outset of the 20th century,
the notion of citizens' rights was still relatively new - finding their genesis
in the second half of the 18th century, with Tom Paine publishing "The Rights
of Man and the above mentioned constitutional developments in the USA and France
- conversely therefore, human rights as an international law concept really
did not exist.

In fact, until the end of World War
II, 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 growth of totalitarian regimes
in the early twentieth century and in particular the atrocities of World War
II 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 became very much a matter of international concern.

The UN's human rights mandate

The first attempt to develop a comprehensive
statement of human rights was the 1948 Universal Declaration of Human Rights
which was adopted unanimously by members of the United Nations. It was initially
a non-binding statement of human rights principles and standards. It is important
to note that Australia played an important role in drafting the Universal
Declaration of Human Rights
.

The Declaration attempted to set
out the fundamental rights of all people, including:

  • the right to life;
  • freedom from slavery,
  • torture and arbitrary arrest;
  • freedom of thought, opinion and
    religion;
  • the right to a fair trial and
    equality before the law;
  • the right to work and education;
    and
  • the right to participate in the
    social, political and cultural life of one's country.

Since then the Declaration
has been the foundation on which much international law has been based as the
UN members have worked to articulate human rights standards as binding on themselves
in international contracts or treaties.[2]

The community of nations, through
membership of the United Nations, decides what rights to enshrine in treaties.
These treaties then may become a part of international human rights law.. It
is important to note however is then up to each country to decide whether to
accept each treaty or not.

Only when human rights treaties are
signed and ratified do they impose an obligation of protection and adherence
on respective national governments and parliaments.

What human rights exist in international
law now?

Over the past 50 years, human rights
standards have been developed and incorporated into many international laws
and treaties.

Generally the most recognised categories
of international human rights are:

  • civil and political rights which
    attempt to protect the individual from the misuse of political power and recognise
    a person's right to participate in their country's political process. The
    most significant treaty in this area is the International Covenant on Civil
    and Political Rights
    ;
  • economic, social and cultural
    rights which require a government to ensure that its people share in the economic
    wealth of the country, can participate in its social and cultural life, have
    access to adequate health care, education, social support and a clean environment
    and are able to use their talents for self-improvement.
  • These improvements are to be implemented
    progressively as States can afford them. The most significant treaty in this
    area is the International Covenant on Economic Social and Cultural Rights.

Whilst there has previously been
debate about whether one set of rights is more important than the other, it
is generally agreed that rights can't be 'ranked'. In other words, all rights
are equally valuable and important in helping people lead free, healthy and
productive lives.

International law has also developed
more specific treaties to amplify and better protect the above rights for particularly
vulnerable groups of people such as children, women, ethnic/racial minorities
and people with disabilities through prohibition of discrimination on the grounds
of race, sex or disability or age.

Human rights scholars and practitioners
have also identified a number of other categories of human rights, for example
the Right to Development, which are not a subject of this lecture.

In Australia today, there are a number
of important ways in which the rights of individuals are promoted and protected,
including:

  • centuries of common law (inherited
    from England)
  • the Australian Constitution and
    the Constitutions of the States
  • statutory laws, especially Federal
    and State anti-discrimination laws
  • an independent judiciary,
  • democratically elected governments,
  • a free media,
  • strong civil society; and
  • bodies like the Human Rights and
    Equal Opportunity Commission created especially to advance and protect human
    rights.

Today I will concentrate on protection
of human rights by the Australian legal system, and in particular by federal
statutory law, the importance of which has grown significantly in this area
especially since the early seventies.

This is not to diminish the importance
of the common law which may play a very significant role in this area by reason
of its traditional regard for fundamental individual rights.

A good example of the common law
impact on domestic human rights is its role in the acknowledgement and development
of the native title rights of indigenous Australians.

The common law principles of habeas
corpus have also been significant in recent years in the context of asylum seekers
who claim they are being illegally detained. The recent Family Court decision
in B & B, which has attracted some public controversy, also reflects aspects
of those principles, with the Full Bench of that court invoking its welfare
jurisdiction to protect the rights of children.

The Federal Constitution

So let's start with the
Federal Constitution as the cornerstone of Australian legal system.

The Constitution of Australia
divides spheres of legislative, judicial and executive responsibility between
the Commonwealth of Australia and the States.

In brief, the Federal government
is responsible for defined heads of power, including national defence, international
affairs and finances, including most taxation. The state governments are responsible
for the residual areas, including health, education (with the exception of tertiary
education) and policing.

Both Federal and State
governments are responsible for human rights protection. States, for example,
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.[3]

On the federal level, a
comprehensive statement of human rights - or citizenship rights as they might
have been known at federation - was not included in Australia's Constitution
despite the French and US examples. Legend even has it that some of our "founding
fathers" opposed it because of its potential to entrench 'racial equality' throughout
Australia!

We followed instead the
British model of reliance upon the common law to protect individuals against
abusive interference by governments.

This could be largely explained
by reference to our history - Australia's mostly peaceful development towards
nationhood and independence.

The Australian federation
was not forged in war or revolution, and non-indigenous Australians have no
history of organised struggle against massive human rights abuses.

Nation states established
in violence, and that is not the experience of mainstream Australia, have been
much more likely to entrench those hard won human rights in their constitutions.

For example, constitutional
protections of human rights were built into most constitutions of recently democratised
countries of the former Soviet block and in post-apartheid South Africa and
the Philippines.

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 Australian reliance
on the common law rather than constitutional rights meant that very few individual
rights were explicitly recognised in the Constitution; for the record they are:

1. the right to vote
(Section 41); although still to be confirmed by the High Court as explicitly
thus;

2. the right to a trial
by jury in the State where the alleged federal offence took place (Section
80)

3. the denial of federal
legislative power with respect to religion (Section 116) and

4. the prohibition against
discrimination on the basis of state of residency (Section 117).

There are also two "economic
rights" - s.92 guaranteeing freedom of interstate trade and s.51 mandating payment
on just terms for property acquired by the Commonwealth.

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 does not guarantee:

  • the 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;
  • the right to a fair
    trial or due process;
  • equality of all persons
    in Australia before the law.

The Constitutional jurisprudence
of the High Court has made a significant contribution to the protection of human
rights in Australia. Particularly 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. So the High Court affirmed
in a decision where Queensland challenged the constitutional validity of the
Racial Discrimination Act.[4]

A High Court interested
in an expansive reading of the Constitution has also found that certain individual
rights are implicit in the system of government it establishes. Thus in 1992
the individual right to communicate freely in political matters was recognised
by the High Court.[5]

The courts have also acknowledged
that international human rights law is a legitimate influence on the development
of the common law which may further strengthen its utility as a means of protecting
human rights.

Federal legislation

The history of Australian domestic
legislation from the point of compliance with human rights standards is uneven.

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.
This was racist legislation which would be in clear conflict with a range of
contemporary human rights conventions.

However as the US Supreme Court 7
to 2 majority decision in the 1857 "Dred Scott" case demonstrates, racial equality
is a tender flower that requires constant love and attention. Here the Supreme
Court found a mere 80 years after the US "Declaration of Independence" that
a slave - Dred Scott, who had lived 13 years in a non-slave state, was not entitled
to a declaration that he was a free citizen of the United States because the
famous words "all men are created equal" did not refer to African Americans!!

Little surprise then that Australia,
a mere four decades later, would still legislate to entrench similar white supremacist
attitudes.

On the other hand, Australia did
reasonably well by contemporary standards in creating a democratic system of
government. For example, as early as in 1902 the federal franchise - the vote
- was extended to women (This voting equality was however not extended to other
spheres of importance to women until the early seventies.)

Australia's particular achievement
has been the development of a comprehensive system of protection of economic
and social rights, which was put in place well before the Bolshevik revolution
in Russia. In fact Australia has been an international leader in this field.

And the role of the Australian trade
union movement in this process over many years must also be acknowledged. It
played a vital part in the system of "checks and balances" that characterises
our economic framework.

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[6] - 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[7]
while Aboriginal workers were excluded from the process until 1966 when Aboriginal
stockmen were granted equal wages to non-Aboriginal stockmen.[8]

So, many human rights were protected
by domestic legislation well in advance of the emergence of international human
rights law and the treaty system.

4. Impact of international human
rights law on federal law

Let us now focus on the impact of
the international human rights law on federal legislation.

As we acknowledged earlier Australia
has been at the forefront of UN activism and has been prominent among the drafters
and the promoters of human rights treaties.

However, human rights treaties provide
simply the mechanisms by which governments agree on those international human
rights which each may wish to recognise for their citizens.

Ratification of an international
human rights treaty does not, however, mean that the treaty standards automatically
became incorporated into domestic law.

Instruments ratified by Australia

By now Australia has now accepted
(that is, ratified[9]) 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)

Instruments incorporated into
domestic law

Despite Australia's leading role since 1948 in the development
of international human rights standards, these standards did not have much impact
on domestic law until the early 1970s. Since then most of human rights treaties
were either comprehensively or partially incorporated into federal law.

The notable achievement is the 1975 Racial Discrimination
Act
which incorporated the International Convention
on the Elimination of All Forms of Racial Discrimination
into domestic
law. A Commissioner for Community Relations was appointed in 1975 to monitor
the new Act.

Another notable achievement is the fact that the Sex
Discrimination Convention
(CEDAW) has been almost fully incorporated
in Australian law through the Sex Discrimination Act
of 1984.

Of the remaining 13 listed above only five, that is

  • the Refugee Convention,
  • the Torture Convention,
  • ILO 100 on equal pay,
  • ILO 156 on family responsibilities
    and
  • ILO 158 on unfair dismissal

could be said to have been
incorporated to any substantial extent in Australian domestic law.[10]

The others three, namely:

  • International Covenant
    on Civil and Political Rights
  • Convention on the Rights
    of the Child
  • Discrimination (Employment
    and Occupation) Convention (ILO 111)

were attached to the Human
Rights Commission's legislation of 1981 and then to the Human Rights and Equal
Opportunity legislation of 1986. Their incorporation must be treated as only
partial, because they do not give rights independently of the Commission's limited
complaints jurisdiction.

To sum up, out of 15 key
international humans rights treaties Australia incorporated comprehensively
8 and partially 3 treaties into domestic legislation.

Further, it should be noted,
that many human rights, especially those relating to criminal investigations
and trials, are similar to common law protections well-recognised in Australia.

The role of the Human Rights
Commission

The Human Rights and Equal Opportunity
Commission (HREOC) is an important element in the human rights protection system
in Australia.

HREOC was established by an Act of
federal Parliament in 1986 as a national independent statutory authority. It
replaced the previous Human Rights Commission, which was set up in 1981.. The
Commission administers federal legislation in the area of human rights, anti-discrimination
and social justice. It reports to the federal Parliament through the Attorney-General.

It is, however important to note
that HREOC does not have constitutional standing; neither does it have a 'court
like' mandate.

The Commission's responsibility is
to foster greater understanding, respect and protection of human rights in Australia,
with a particular focus on sex, race and disability discrimination, as well
as the rights of indigenous Australians.

The Commission does this through:

1. holding inquiries into issues
of national importance, such as the forced removal of Aboriginal children
from their families, paid maternity leave and the rights of children in immigration
detention centres;

2. providing independent advice
to assist courts in cases that involve human rights principles such as:

  • International law and the extent
    to which administrative decision makers are obliged to take into account
    international human rights instruments in making decisions (the Teoh case);
  • Inconsistency between state
    and federal legislation in relation to the criminalisation of homosexuality
    (the Croome & Toonen case);
  • Freedom of political speech
    (the Langer case).

3. Providing advice and assistance
to parliaments and governments to develop laws, programs and policies such
as the federal Age Discrimination Act, currently before parliament;

4. And, finally raising public
awareness of human rights by fostering public discussion, developing educational
programs and resources for schools, workplaces and the community.

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

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, in most cases the complainant is
entitled to take the matter to court for a decision and a remedy, including
compensation where appropriate.

Individuals may also complain to
HREOC about alleged breaches of civil and political rights (under the International
Covenant on Civil and Political Rights) where the allegedly guilty party is
the Commonwealth (eg. federal department).

This "right" provides protection
for:

  • the right to life
  • freedom from torture or cruel,
    inhuman, or degrading treatment or punishment
  • the right not to be held in slavery
    or servitude
  • the right not to be subjected
    to arbitrary arrest or exile
  • the right to humane conditions
    and treatment while in detention
  • the right to a fair and public
    hearing
  • freedom of thought and religion
  • freedom of opinion and expression
  • freedom of association and assembly
  • the right to vote.

This "right" also provides protection
against discrimination in employment by the Commonwealth on a range of grounds,
such as age, religion, sexual preference, political opinion, trade union activity
and medical records.

Complaints received under this provision
are resolved by conciliation between the parties.

However, unlike complaints under
the anti-discrimination laws, if the matter can't be conciliated, even if the
Commonwealth is found to be in violation of human rights, there is no provision
for the matter to be referred to an Australian court for conclusive arbitration.

The Commission only has power to
report on the matter to the Parliament. 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.

The lack of an effective remedy for
civil and political 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.

It is the absence of effective implementation
of the ICCPR that has allowed State and Territory governments to impose 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.

5. Moving forward on human rights
protection

Based on the above analysis one could
conclude that human rights protection in Australia is of relatively high standard.
Democratic traditions and a comprehensive body of common and statutory laws
provide a solid basis for protection of human rights. Despite the existence
of continuing disadvantage of indigenous Australians, particularly strong mechanisms
are in place to protect equality and economic rights.

However, 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.

Negative consequences of weak
protection of civil rights

The lack of adequate legislative
protection of civil liberties in this country is now bringing a range of negative
consequences to Australia.

1. It may result in the
erosion of existing civil liberties. Lack of a statutory statement means there
is no yardstick of measurement. It makes both enforcement through the courts
and civic education difficult. It allows executive power to grow.

For example:

  • 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 and subsequently the
    ASIO Bill. 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.

2. It may mean that the
power of the Executive grows and is unreviewable by the judiciary. Generally
we understand the position to be one of 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.

  • HREOC's inspections
    and reports about Australia's remote location immigration detention centres
    at Port Hedland, Curtin and Woomera tells us that elimination of regular judicial
    oversight of administrative detention, especially where it is long-term, is
    dangerous. In the time 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

3. The lack of legislation
defining our civil liberties means our courts are left with developing common
law in this area thereby usurping the legislative process. For example:

  • the Australian High
    Court in 1995 in the previously mentioned, 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.

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 experience.

4. We are unable to contribute
to the international jurisprudence of these matters. If Australian courts were
able to interpret a domestically developed code of civil rights, in time this
Australian jurisprudence would contribute to better international understanding
of our way of life.

5. Adverse psychological
impacts. Individual Australians are aware that globalisation means that economic
and financial deregulation is here to stay and consequently they need to take
more personal responsibility for their careers. To achieve this will require
a preparedness to take calculated risks, however they also know that they have
very little recourse to any statutory "rights" protection, offsetting those
risks. The absence of these rights makes them reluctant to fully engage with
the deregulated environment.

Civil liberties and Australian
public opinion

So, why don't Australians
lobby our parliamentarians for better protection of civil and political rights?
Let us examine contemporary Australian human rights culture as expressed in
a range of public opinion surveys to assess what support, if any, there is among
Australia's public for enactment of a bill of rights.

Examination of available
public opinion data suggests that we have to account for a complex body of attitudes
which is in the process of constant change.

Earlier I spoke about our
focus on anti-discrimination laws. It was interesting to find that there appears
to be a growing "equality fatigue" amongst Australians. Many people express
the view that anti-discrimination laws provide "special favours" for minorities
and "nothing of value" for the mainstream.

At the same time there
is a sense that equality has been achieved and there is little else that must
be done in order to protect equality rights.

In fact, community confidence
in the existence of equal rights in Australia has risen over the past decade.
In 1991, almost two-thirds (64%) of 1,522 people surveyed 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.[11]
In 1999 a majority believed that equal opportunity is now enjoyed by women and
migrants.[12]

This "equality fatigue"
does not appear to extend to people with disabilities and it is difficult to
assess attitudes toward the currently proposed age discrimination legislation.

It was encouraging to find
that Australians are more comfortable with the notion of rights and freedoms
than they are with increased protection for equality rights.

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;
  • Right to vote; and
  • Freedom from arbitrary
    arrest.[13]

Further, more than half
of 1,505 Australians surveyed in 1991-92 believed that their rights are not
well protected against unfair government action.[14]
It is encouraging to read 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.[15]

Barriers to better protection
of rights

Despite widespread endorsement of
a range of rights and freedoms and desire for protection from arbitrary government
action, there exists a range of institutional and other barriers to further
advancement of human rights protection through legislation.

Perhaps the most important barrier
is the widespread belief that our democratic systems of government, especially
with an independent judiciary that applies and develops the common law are the
best protectors of an individual's rights.

The Prime Minister has expressed
this view 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.[16]

A consequence of this belief that
everything works well at present is the quite widespread attitude "if it ain't
broke don't fix it".

Another key barrier relates to the
fact that 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 I have met,
especially during my early meetings of the National Dialogue on Human Rights,
believed 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.

However the position here is still
capable of producing contradictory outcomes as it appears to have changed in
recent months. The strong tide of public demonstration and opinion polling,
against Australian involvement in the Iraq war without a UN mandate, clearly
shows that on the really big international issues Australians still trust the
UN more than our elected representatives.

Another barrier is our long standing
concern about issues relating to border protection and immigration. Recent issues
such as the Tampa asylum-seekers incident or the terrorist attacks on the US
and in Bali may have added complexity to the issue. Australians who believe
in basic human rights are also concerned about their security, and there has
already been some evidence of compromising rights in order to increase our sense
of national security.

What could be done to enhance
Australia's human rights culture?

The clash of cultures that these
incidents have highlighted reveals important tensions within Australian society,
and between ideas of protecting freedoms and protecting security. Hopefully,
discussion on these points will expand into a more general debate about human
rights and their role in Australian society.

I will turn now to the nature of
such a debate and the role that the Human Rights Commissioner can play in stimulating
serious dialogue on human rights.

How will I achieve this HR dialogue?

For my part the first step involves
organising a large number of community meetings where I would link a discussion
about human rights with a controversial contemporary issue. At the moment that
could be:

  • The idea of a Bill of Rights and
    its intersection with, say,
  • Mandatory immigration detention
    policies.

However in order for this to resonate
with my audience I will also need to humanise the asylum seekers story.

The need to humanise these experiences
is one of the key reasons why I undertook the Inquiry into Children in Immigration
Detention because of its innate capacity for the subject matter to communicate
with Australians. And already I believe we are seeing some shift in public opinion.

Consider these statistics:

  • Tampa - 75% of Australians supported
    the government's action;
  • Currently 70%-75% believe children
    should be released from detention;

At this point I would also like to
fully acknowledge the wonderful efforts of NGOs and others who have done so
much to foster this attitudinal change in the community.

We must also be very careful to ensure
that our web-based teaching materials our constantly scrutinised to ensure their
relevance. This is particularly important because the HREOC website is so frequently
accessed. Last year our web based human rights teaching resources, which includes
"human rights explained", received approximately 280,000 page views. So while
it is clearly a much valued reference point, it must correspondingly aspire
to maintain contemporary relevance.

But please don't leave today with
the impression that this work can only be carried out by people like me or specialist
NGOs. I believe we can all make a difference and I urge all present here today
to initiate their own process of human rights dialogue with their fellow Australians.
While I am reluctant to be too prescriptive, a good starting point would be
themes such as:

  • Better protection, and
  • The advancement of the culture
    of human rights.

I firmly believe that we are in the
middle of an ideal opportunity to debate human rights. Let us turn the challenges
of the recent past, both local and international, to our advantage by ensuring
that our discussion of them occurs within a human rights framework. Never has
there been a better time for people like us to work towards the creation of
a serious national debate about the importance of human rights within Australian
society, than right now.


1. The
first of the Geneva Conventions is dated 1864 and covers the immunity of military
hospitals and medical staff.
2. 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. They do not become part of domestic law unless specifically incorporated
into the local legal system.
3. s109 Australian Constitution
4. Koowarta v Bjelke-Petersen (1982) 153 CLR 168.
5. Australian Capital Television Pty Ltd v Commonwealth (1992)
177 CLR 106.
6. Ex parte H V McKay (1907) 2 CAR 1.
7. 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.
8. Re Cattle Industry (Northern Territory) Award (1966) 113
CAR 651.
9. 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.
10. 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.
11. Social Science Data Archive, Rights in Australia 1991-1992:
National Household Sample (1992, ANU, Canberra).
12. Social Science Data Archive, Australian Constitutional
Referendum Study (1999, ANU, Canberra).
13. 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); 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.
15. Social Science Data Archive, Rights in Australia 1991-1992:
National Household Sample (1992, ANU, Canberra).
16. House of Representatives Hansard, 5 April 2001, page 25680.

Last
updated 19 May 2004.

See Also