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Peering through human rights-tinted glasses

Rights and Freedoms

Annual Lecture, Castan Centre for Human Rights Law. Given at the State Library of Victoria on 7 October 2016.

This year, we celebrate (or mourn, according to your perspective) the 60th anniversary of the first computer to defeat a human in chess. It occurred, predictably enough, in Los Alomos, and the human was a novice. Over the next 30 years, the best humans easily saw off the best computers. But by the late ’90s, the tide had well and truly turned – epitomised by Deep Blue’s famous victory over Gary Kasparov.

Hikaru Nakamura was born in 1987 in Japan but grew up in the United States. At age 15, and under the tutelage of his chess-obsessed stepfather, he became the youngest ever grandmaster. In 2008, Hikaru took on Rybka, which is generally regarded as the best commercially-available computer chess program. By this time, flesh-and-blood chess players – even grandmasters – rarely beat the best computers.

However, Hikaru figured out a way to exploit a hitherto-unexplored weakness in the computer’s programming. He followed a well-worn series of moves that almost always ended in stalemate. Rybka duly played its appointed role. But then, at the last moment, Hikaru did something unexpected and brilliant.

Having seized the advantage, Hikaru didn’t take the swiftest route to victory. Instead, by advancing slowly up the chess board, he contrived to convert all of his six surviving pawns into bishops. His endgame was pure human flamboyance: encircling Rybka’s king with an unholy collection of bishops. (This passes for a joke in the chess world.)

I like this story for lots of reasons. First, it contains the three subjects that make up the nerd’s trifecta: child prodigy, chess board and computer.

Secondly, in the battle between human and machine, the human won. I take to heart so much the increasingly alarming stories of machines turning against their masters that I sometimes look cock-eyed at the toaster. So it’s nice to see Hikaru getting one back for the humanoids.

Thirdly, and more seriously, it suggests a useful conceit for my perspective on international human rights law and the role it can play in a jurisdiction like Australia. I realise I’m drawing a really long bow here, so please bear with me…

The centrality of international human rights law to the Commission

The Australian Human Rights Commission generally, and my own role as Human Rights Commissioner specifically, is grounded in international human rights law. The Commission’s jurisdiction, powers and authority derive their substantive content, as well as their shape, from international human rights law.

Our remit doesn’t quite spread across all international human rights law, but the starting point is the five international instruments (including the International Covenant on Civil and Political Rights) that are scheduled to the Commission’s constituent statute.

Grounding our work in international human rights law is crucial. Not only does it mark out territory over which the Commission claims authority, it provides the intellectual ballast that supports the Commission’s contribution to debates that are often highly contested.

The alternative is that the Commission becomes a commentator who insists you listen to them solely because they hold a megaphone and have a loud voice. In other words, giving our tuppence worth on important issues, but without the institutional expertise and credibility that comes with an area of particular expertise and experience, risks diluting the Commission’s voice and ultimately its impact.

The corollary of relying on our intellectual ballast is that there are some waters where the Commission’s ship is ill-equipped sail. For instance, Commission staff such as myself might have strong personal views about issues like the funding of political parties. But, when speaking with an institutional voice, we can approach this only from a narrower, human rights perspective. There might be very persuasive arguments in favour of, say, restricting political donations from property developers, but we need to stick to the human rights arguments. We have less competence on the other dimensions of that issue – such as the economic cost-benefit analysis; or whether such a restriction is likely to have a greater political impact on political parties of the left or the right.

Exercising restraint is sometimes difficult and, from time to time, it will result in our not taking an opportunity to make an important point. But this restraint is vital in preserving and building respect for the Commission’s distinct and important role in public policy.

The role of international human rights law
Whenever we at the Human Rights Commission look at a social issue, our starting point is to ask the question: how does international human rights law help us to resolve this social problem?

Perhaps I can return to my earlier computer chess conceit in unpicking our process. Early computers could really only cope with problems that had a single correct answer. A pocket calculator, for instance, is very effective at making calculations – even very complicated ones – because those calculations involve the application of an iron-clad rule with a single, correct answer.

It would be handy if international human rights law lent itself to this sort of approach to problem solving: you put in the variables and the ‘international human rights law answer generator’ spits out the result – lawful or unlawful.

There are some areas where the law really is almost this black and white. But this is largely limited to absolute rights. For example, slavery is not permitted in any circumstances. No ifs, buts or possibility of compromise. The only grey area relates to questions of fact, not law; for instance, whether the person accused of slavery committed the acts that constitute slavery.

Inconveniently, however, those black-and-white areas are rare. More often, international human rights law provides a guide in how we should accommodate competing rights and interests. It reflects that, because humans are social animals, what we do generally causes us to interact. And as soon as we interact we need to find ways to compromise so that our interactions don’t impinge more than is absolutely necessary on the basic dignity of those around us.

In human rights law, the principal mechanisms for achieving the necessary compromise are the process of derogation and the construction of lawful limitations on human rights. But how do we activate those mechanisms? Especially given those mechanisms need to operate in a way that is, on one hand, predictable and consistent, and on the other nuanced and adapted to the particular circumstances at hand.

Whereas a computer-type approach is good at predictability and consistency, it fails in human rights. Let me explain.

The computer has improved at chess over the last 60 years because its processing power has been on an exponential up. Through brute processing force, it has become better and better at conceiving of the many scenarios that might arise from different moves and counter-moves and, based on the strict and simple rules of the game, it can assess the relative merits of each of its options.

Thus, the computer plays chess with none of the creativity or intuition that are central to the human grand master’s genius. And so it works… until a novel, unpredictable scenario arises – as Hikaru showed.

This is precisely the problem with social issues and human rights. A computer-type approach – that is, a regimented or mechanistic approach – doesn’t work in human rights for three main reasons.

First, human rights generally offers no single, simple rule to apply and, consequently, there’s rarely a single correct answer. Even huge processing power, imagining a vast number of scenarios, is inadequate.

Secondly, unlike chess, the broader rules of human interaction are neither strict nor straightforward. They are a messy and complex amalgam of formal and informal laws, policies, practices and norms. Those rules are not all internally consistent nor are they applied evenly or predictably. But we need to take note of these rules in devising practical and effective strategies to protect human rights.

Thirdly, chess is zero sum; the endgame is to defeat one’s opponent. By contrast, human rights as a body of law, principle and philosophy aims to protect individual dignity in a collective way – that is, it aims to protect the dignity of all individuals.

To put this more positively, a human rights approach frequently demands a process of accommodation and compromise that is more art than science. It draws on skills and qualities that are innately human.

Take, for example, the role of the proportionality principle. This principle, which derives from 19th century Prussian law, has been central in adapting human rights law from incontrovertible, but abstract, concepts so that it can apply to the most pressing social problems we face.

As many of you will be aware, a proportionality analysis starts with a human right that is being impinged and asks whether the impingement itself has a legitimate aim. We then consider whether the means used to achieve that aim are appropriate and necessary.

In essence, proportionality allows us to compare apples with oranges. For example, the right to freedom of expression comes into friction with a government’s aim to protect intellectual property. They are apples and oranges, because free speech and intellectual property drive at completely different goals. Proportionality enables each to exist without impinging more than is necessary on individual dignity.

A more topical example would be prohibitions on racist or homophobic vilification. An anti-vilification law presents even more difficult questions because it involves tension between two human rights (as distinct from tension between a human right and another interest that, while legitimate, doesn’t have that status).

So, where does this leave us? For me, it means acknowledging three feature of peering through human rights-tinted glasses:
1. It is inherently difficult.
2. It is rarely the search for a single, correct answer. Rather, it’s more commonly a search for practical compromise that places the protection of individual dignity at the centre.
3. It is not susceptible to a mechanistic, or computer-like, approach. Instead, it requires us to get our hands dirty in dealing with the complexity of human relations.

Before I move to a few practical areas, I want to make one further point. While I think these acknowledgements are important, I am in no way saying that a human rights approach, or international human rights law more generally, is a pathway towards arbitrariness or a fig-leaf for being guided by one’s instincts.

On the contrary, by acknowledging the difficulties that I think are inherent in this area, and being disciplined in adopting an approach that mitigates any resultant problems, we’re more likely to bring human rights to the forefront of how we deal with social problems in Australia – especially given the absence of a statutory or constitutional bill of rights… at the national level.

My focus areas
So far, I’ve been speaking in fairly theoretical terms and, perhaps inexplicably, I’ve been referring repeatedly to chess and computers. I’ll now start talking more practically, and there will be no more chess or computer references.

I have been in my role for two months, and for my first year, I will have three main focus areas:
• marriage equality and other LGBTI rights issues
• conditions of detention
• freedom of expression and other related rights issues.

Marriage equality

Starting with marriage equality, I’m acutely aware that I go through the world without the lived experience of a person from within the LGBTI community. I care deeply – personally and professionally – about these issues.

But the absence of direct experience means that I enter the febrile debate on marriage equality, and other less prominent but equally important debates affecting LGBTI people, with greater capacity to make mistakes. Please, please tell me when I do – especially if you have direct lived experience of the issues I’m given the privilege to speak publicly about.

Marriage equality is an issue where international human rights law provides guidance, as distinct from a clear-cut, binary answer. At the Human Rights Commission, we have reflected in particular on Article 26 of the International Covenant on Civil and Political Rights. It says: “All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground…”

There are some interpretations of this and other provisions in international human rights treaties that don’t go so far as to protect marriage equality. The 1999 opinion of the UN Human Rights Committee in Joslin is most often cited to this effect.

However, such opinions are increasingly being confined to a historical minority. Instead, there is a broad, emerging consensus from respected and authoritative international bodies, as well as courts in comparable jurisdictions to Australia, that the principles of ‘equality before the law’ and ‘non-discrimination’ demand that marriage be extended beyond heterosexual couples.

And this is the Human Rights Commission’s position. At the same time, a human-rights-based approach requires that we consider whether legal recognition of marriage equality involves an impingement on other human rights.

The clearest such impingement is freedom of religion. Some, but of course not all, religious organisations see marriage equality as contrary to their core religious beliefs. Accepting this means carving out space to ensure that members of those religious organisations can continue to practise their religion without more than necessary interference.

For this reason, the Commission endorses the widely-accepted view that religious organisations that object to marriage equality on religious doctrinal grounds should not be required to solemnise a same-sex marriage. This is the current approach taken in the Marriage Act. It’s necessarily a compromise. As with any compromise, it involves some ‘give’ from each side, but crucially it aims to preserve the dignity of all parties to the maximum extent possible.

A plebiscite?
So, this sets out the Commission’s view on marriage equality. It’s been our consistent view for many years.

We are also conscious that we’re in the middle of a vigorous public debate about this potential reform and, most acutely, how that reform should be formally considered.

Whether this should be resolved by a plebiscite is ultimately a question for Parliament. But from a human rights perspective, we don’t believe that a plebiscite is appropriate in resolving issues of fundamental rights.

The Commission’s role in the marriage equality debate
As the public debate intensifies, we see the Commission as having two key roles in respect of marriage equality.

First, we see an important, but not particularly prominent, role for the Commission in promoting respectful discussions that accommodate the human rights and freedoms of all Australians.

This could mean discussing how to avoid, where possible, language that each side finds most objectionable. For example, many opponents of marriage equality object to labels such as ‘homophobe’ or ‘bigot’ being deployed too readily. And advocates of marriage equality do not wish the debate to be portrayed as something it’s not – such as a referendum on rainbow families having children, or the Safe Schools program.

Secondly, the Commission has an important role in providing simple and clear community education about the human rights issues associated with marriage equality. That can be done in a way that breaks down myths and promotes an accommodation of competing rights, beliefs and interests.

Rights of intersex people
Over the coming year, the Commission also intends to work on promoting the rights of intersex people by building on the findings of the 2013 inquiry of the Senate Standing Committee on Community Affairs into the involuntary or coerced sterilisation of intersex people.

The Commission will focus on:

  • evaluating the current approaches taken to medical interventions in Australia and other jurisdictions by reference to a human rights-based framework; and
  • developing a nationally consistent human-rights based approach to decision-making about medical interventions with the aim of ending medically unnecessary, non-consensual "normalising" interventions.

As Human Rights Commissioner, I’ll be taking the lead on our marriage equality and intersex rights work; however, the Commission as a whole will continue its LGBTIQ rights-based advocacy in a number of other important areas; particularly in relation to the human rights of trans and gender diverse people.

Of particular note:

  • The National Children’s Commissioner, Megan Mitchell, will be leading the Commission’s advocacy to amend the Family Law Act to enable trans young people to access stage two treatment without the need for court order.
  • The Sex Discrimination Commissioner, Kate Jenkins, leads the Commission’s work with the Australian Sports Commission and Pride in Sport to promote trans, gender diverse and intersex inclusion in sport.

Before I run out of time, I want to make brief mention of another major area that I will focus on in my first year: the Optional Protocol to the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (known as OPCAT in the United Nations’ universal acronym lingo).

Many of you are expert on OPCAT, but for those who are not, Australia has been a party to the Convention Against Torture (known as CAT) for more than a quarter of a century. OPCAT came into being in 1987. Interestingly, it doesn’t create any new rights beyond those already set out in the main treaty, CAT. Instead, it’s intended to create a procedural mechanism to hold states to account for their CAT obligations.

Australia signed OPCAT in May 2009, but we haven’t taken the final steps that would make it operational in Australia – namely, ratification and domestic implementation. Those steps would lead to Australia establishing what is known as a National Preventative Mechanism – essentially a network of independent Australian monitoring bodies that proactively go into places of detention to identify practices that could be in breach of the human rights set out in CAT, and work with Australian governments to fix them. It would also enable the UN to send a monitoring team to Australia – once every 5-10 years.

The horrifying images from the Don Dale Youth Detention Centre, broadcast on 4 Corners, exemplify the need for more to be done to protect the basic rights of Australia’s most vulnerable detainees. In an OPCAT jurisdiction, some of the worst practices are likely to be identified before they metastasise.

For instance, an OPCAT monitoring body would identify the problems with using so-called ‘spit hoods’ on juveniles. This would lead to a conversation with the detention authority that would show that while there might have been a legitimate aim behind this practice (stopping the spread of disease), there are many alternative solutions to that problem that would not have been so damaging to the human rights of the young people involved.

We at the Commission are advising the federal government primarily, as well as the states and territories, on OPCAT. We hope that the Government will soon announce how it will proceed.

So to return to my title: we at the Commission do peer through human rights-tinted glasses. This means grounding of our work in international human rights law, which is where our expertise and experience lie.

It also means seeing international human rights law for what it is: a set of legal principles that promote practical compromise between competing rights, as well as competing rights and interests, with a focus on protecting individual dignity.

And we acknowledge the messy human endeavour that this is. For this reason, we strive to be more like Hikaru Nakamura, rather than his computer nemesis, Rybka.

Mr Edward Santow, Human Rights Commissioner