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President Speech: In the national interest: the promotion and protection of human rights

Commission Commission – General

In the national interest: the promotion and protection of human rights

Attorney-General’s Department Talking Heads Seminar Series

The Hon Catherine Branson QC, President,
Australian Human Rights Commission

24 June 2010


1 Introduction

Thank you for the opportunity to speak here today. I would like to begin by
acknowledging the traditional owners of the land on which we meet, the Ngunnawal
peoples, and pay my respects to their elders past and present.

Over many years, officers of the Attorney-General’s Department have
worked hard to ensure the protection and promotion of human rights in Australia.
In particular I would like to acknowledge the work of the Human Rights Branch
and the Office of International Law. You will be aware of the significant
efforts of the Human Rights Branch during the National Human Rights
Consultation, and the ongoing work in implementing the recently announced Human
Rights Framework. The Commission is grateful for the good working relationship
that we have with the teams responsible for this work.

Today I would like to begin with a brief overview of the work of the
Australian Human Rights Commission and the internationally recognised role of
national human rights institutions such as ours. I will then reflect on the
Human Rights Framework for Australia and the ways in which I see this new
Framework improving human rights protections in Australia.

2 An introduction to the work of the
Commission

I am sure that many of you will have a good understanding of the role and
functions of the Australian Human Rights Commission – however, for those
of you less familiar with our work, I would like to give an overview of who we
are and what we do.

The Australian Human Rights Commission is an independent statutory agency
established in 1986 by the Australian Human Rights Commission Act. The
Act sets out our responsibilities and functions in relatively broad terms.

The Commission has functions under the four federal discrimination acts
– the Sex Discrimination Act, the Race Discrimination Act, the Disability
Discrimination Act and the Age Discrimination Act.

We also have more general human rights responsibilities to protect and
promote the rights and freedoms contained in certain international human rights
treaties, including the International Covenant on Civil and Political
Rights
, the Convention on the Rights of the Child, the Convention
on the Rights of Persons with Disabilities
and International Labour
Organisation Convention 111
which relates to equal opportunity in
employment.

To execute our responsibilities we have a range of statutory functions:

  • we accept and try to resolve by conciliation individual complaints about
    discrimination and human rights

  • we monitor the government’s human rights performance and make
    recommendations on how Australian law and policy could better meet our human
    rights obligations

  • we provide education about human rights – we maintain an extensive
    website, develop publications and educational resources to improve awareness,
    understanding and respect for rights in our community

  • with the leave of the court concerned, and subject to such conditions as the
    court imposes, we intervene in legal proceedings where we consider it important
    to make submissions on human rights issues.

The Social Justice
Commissioner has responsibilities to prepare two reports annually on Indigenous
peoples’ enjoyment of human rights. These are the Social Justice Report and Native Title report and they are tabled in the federal
Parliament.

The Commission also has a small international program team that specialises
in education and training with a focus on the Asia-Pacific Region.

3 The role of National Human Rights
Institutions

We are Australia’s national human rights institution. Internationally,
national human rights institutions are guided by a set of standards contained in
a resolution of the United Nations General Assembly and more commonly referred
to as the ‘Paris Principles’. These principles identify the key
characteristics of national institutions necessary for an institution to be
recognised as credible and sufficiently rigorous. They are concerned with role,
composition, functions and independence. National institutions are subject to a
process of accreditation on a periodic basis to establish whether they meet, or
continue to meet, these standards.

In order to be compliant with the Paris Principles, a national human rights
institution requires:

  • a broad mandate, based on universal human rights standards

  • pluralism, including membership that broadly reflects the society

  • adequate powers of investigation; and

  • guaranteed independence and autonomy, including adequate resources to enable
    it to carry out its
    functions.[1]

The
Australian Human Rights Commission is an ‘A’ Status national human
rights institution. This means that the Commission fully meets the requirements
set by the international community for an effective national institution that
promotes and protects human rights.

I would like to discuss two key features of ‘A’ status national
human rights institutions: independence and the power of investigation as it
relates to individual complaints.[2]

3.1 Independence

It is important to understand the true value of an independent institution
such as ours.

National human rights institutions walk a difficult path. While we are
dependent on government for funding, our role is to sit outside the government
and to analyse law and policy through a human rights lens. Our independent voice
requires that, if necessary, we criticise what the government has done or
proposes to do. At other times we may support a particular policy or the passing
of a new law. We are not bound by ministerial direction and our work is not
dictated by government policy. We have a direct relationship with the
Parliament, and a direct reporting relationship and significant interaction with
the parliamentary committee system. Our position is always determined by
reference to the international human rights obligations into which Australia has
voluntarily entered.

The independence of the Australian Human Rights Commission makes an important
contribution to the checks and balances in our political system. We contribute
to the accountability of government. Our independence is fundamental to our
work. However, we always endeavour to work constructively and collaboratively
with the Australian Government to improve the protection of human rights in our
community.

The independence of the Commission is particularly important in the absence
of statutory or constitutional protection of rights. The Commission consistently
reminds the Australian Government that it has agreed to be bound by
international human rights standards. We also support the community sector in
their efforts to ensure that Australian law and policy meets human rights
standards.

3.2 Individual Complaints

Another key feature of a national human rights institution is the capacity to
receive and investigate complaints from individuals who allege a breach of their
human rights.

The Commission can accept complaints on three related grounds: complaints
about unlawful discrimination, general human rights complaints and complaints
about discrimination in employment flowing from our obligations under the
International Labour Organisation Treaty 111.

The resolution of individual complaints can have an impact on two levels: it
always has an impact on the individual involved, and often it also has a
systemic impact.

For example, a substantial number of the complaints the Commission receives
relate to unlawful discrimination on the grounds of disability. The conciliation
of such a complaint can change an individual’s life. An example is a
conciliation process which led to an employer installing screen reader software
for a person with a vision impairment. The employer had previously refused to
make this reasonable adjustment to the workplace.

In some cases, the resolution of an individual complaint has a systemic
outcome. In one such instance, a deaf man from Western Australia made an
individual complaint to the Commission about his local cinema failing to provide
captioned movies. He told the Commission that his complaint was not just about
him and his local cinema: the failure to provide captioned movies was an issue
that affected all deaf and hearing-impaired people in Australia.

The Commission established a forum involving industry and disability groups.
The result was the roll out of a National Access Plan, with a number of major
cinemas releasing captioned movies right around Australia. A noteworthy result
from one person’s complaint!

Individual complaints also inform the Commission’s broader policy work.
The complainant concerned about his local cinema is just one of a number of
people with disability to lodge complaints about the lack of access to public
services and facilities. These complaints have served as an impetus for
developing general standards to clarify the non-discrimination provisions of
laws such as our Disability Discrimination Act.

Just last month the Australian government tabled the Disability (Access to
Premises) Standards in Parliament. The Commission, along with this department,
played an important role in developing these Standards, which clarify how
architects, builders and developers can design and construct buildings to ensure
that buildings are accessible to people with a disability. These voluntary
Standards will apply to all new public buildings constructed or renovated after
May next year. This is a very significant development – Parliamentary
Secretary Shorten described the current situation as similar to apartheid: we
would not tolerate a sign outside a building prohibiting people of different
races from entering and yet we have until now tolerated buildings being built in
such a way that many people with disabilities simply cannot physically enter
them.

The resolution of complaints can have a fundamental impact on the lives of
vulnerable people in our community. Sometimes individual lives are changed;
sometimes the result is a change in the lives of many. We are committed to
ensuring wherever possible that our broader policy work draws upon the issues
that come before us as individual complaints.

4 Australia’s Human Rights Framework

When Louise Arbour held the position of the United Nations High Commissioner
for Human Rights, she was asked to comment on the inadequacies of the UN system
in dealing with serious human rights violations around the world. While she
conceded that there were problems with the system, she replied:

This is our world. We have to make it
work.”[3]

In Australia, the system of human rights protection is far from perfect. But
we have to make it work, particularly for those whose rights are easily
overlooked or undervalued. It is in the national interest for all of us in
Australia to begin to take human rights more seriously.

As you no doubt know, Australia is the only Western democracy without
over-arching legal human rights protection – through either a Bill of
Rights or a Human Rights Act. There are some limited human rights protections in
our Constitution, in statutes and in the common law. However, the constitutional
protections aside, these protections can be deliberately or inadvertently
undermined by laws made by the Parliament.

Although the Government’s recently announced Australia’s Human
Rights Framework has not promised all that we, as a Commission, wished for, we
do believe that the Framework contains much that is positive and much that can
be made to work for the better protection of human rights in Australia.

I wish to address briefly two aspects of the new Human Rights Framework for
Australia: the Human Rights (Parliamentary Scrutiny) Bill and the support for
better human rights education in Australia.

4.1 Human Rights (Parliamentary Scrutiny) Bill
2010

The Commission has welcomed the recent commitment to establish a
Parliamentary Joint Committee on Human Rights and to introduce a requirement
that all new Bills introduced into Parliament be accompanied by a statement of
compatibility Australia’s international human rights obligations. These
initiatives have the potential to make significant contributions to the better
protection and promotion of human rights in Australia and to give human rights a
prominent place on the Australian political agenda.

The exact powers and proceedings of the Joint Committee will be determined by
resolution of both Houses of
Parliament.[4] So the details of
exactly how the Joint Committee will function and what its powers will be are
still undetermined. Nonetheless, there is reason to believe that the scrutiny of
bills by this Joint Committee will prove an important step towards the
development of an enhanced human rights culture in Australia. Such scrutiny has
the potential to improve the protection and promotion of human rights in three
ways. It should:

  • prevent breaches of human rights as the practice of considering human rights
    from the beginning of the law and policy making process develops,

  • ensure greater consideration of human rights issues by Parliament

  • contribute to a dialogue between the Australian Government and the
    Australian people.

I will address each of these in turn.

(a) Prevent breaches of human rights from
occurring, because human rights are considered from the beginning of the law and
policy making process

By establishing a Parliamentary Joint Committee on Human Rights, the
Australian government sends a message that it commits itself seriously to
complying with its international human rights obligations.

Parliamentary processes can often work swiftly and without proper
consideration of human rights. This was arguably the case, for example, with the
Northern Territory Emergency Response legislation and some counter-terrorism
legislation. Parliament has acted under the pressure of a perceived emergency
and passed legislation subsequently widely criticised as incompatible with
Australia’s international human rights obligations.

The preparation of Statements of Compatibility and the existence of the Joint
Committee should ensure that the human rights implications of new laws are
openly and transparently assessed and debated before the laws are enacted.

We can look to the example of how the Joint Standing Committee on Treaties
has operated to be optimistic of this. That committee was introduced several
years ago, along with new processes for the conduct of a National Interest
Analysis prior to Australia entering into new treaty obligations. The working
methods of that committee are now entrenched and thoroughly accepted as how we
do business.

(b) Human rights should not be an
after-thought but should be embedded in the early stages of the policy
development process. And it is necessary not to think too narrowly about the
potential for human rights issues to arise – as we know issues of this
kind can arise in areas as diverse as the regulation of the legal profession and
measures to enhance national security.

The Joint Committee will be an important mechanism for the prevention of
human rights breaches in Australia, providing it is diligent, well informed and
adequately resourced.

The Joint Committee has broad functions, allowing it to inquire into and
report on any piece of legislation that raises significant human rights
concerns. This will assist Parliament to be better equipped to consider the real
human rights implications of legislation during debate.

I have spoken before about the need to build a ‘culture of
justification’. By this I mean a culture in which every time government
exercises power in a manner that interferes with our fundamental freedoms, this
interference is publicly and transparently justified. This should include
explaining why such interference is necessary and how it is the most limited
restriction of rights available. I believe that the establishment of the Joint
Committee lays the foundation for that culture. It will no longer be possible
for the Parliament simply to overlook the human rights consequences of a
particular law. The Parliament will need to be open and transparent about what
it is doing and how it intends on doing it.

(c) Development of a dialogue about human
rights between the Australian Government and the Australian people

The Australian Human Rights Commission believes that the Joint Committee
should have the power to consult widely during any inquiry process. This will be
a first important step towards ongoing, robust and meaningful dialogue between
the Government and the community about human rights issues.

The scrutiny process itself should be open and transparent and easily
accessible to members of the public. It is crucial that the Joint Committee
encourages the community to engage with the scrutiny process. Direct public
participation in the formulation and review of new laws will influence the
development of law and policy in a way that is responsive to the
community’s expectations about how human rights should be protected. It
will also contribute to a greater understanding of human rights and how they
apply to everyone, everywhere, everyday.

4.2 Human Rights Education

This leads me to discuss the importance of human rights education. Changes in
human rights in Australia will not come about through the law alone.

We must build human rights into both law and practice. Just last week I spoke
at a human rights policy forum in the Philippines about human rights challenges
in Australia. In that speech, I identified building a stronger human rights
culture as the greatest human rights challenge for Australia.

This challenge stems partly from the low levels of awareness about human
rights in Australia. Indeed, the key finding of the National Human Rights
Consultation Report was that Australians know little about their human rights
– what they are, where they come from and how they are
protected.[5]

This is why the Australian Human Rights Commission has welcomed the
Government’s commitment to better human rights education in Australia and
the dedicated funding to both the Attorney-General’s Department and the
Commission for this purpose.

The Commission agrees with the Government that raising understanding and
awareness of human rights within Australia’s public service must be a key
priority in building a rights-responsive government.

The Victorian Human Rights and Equal Opportunity Commission has identified
one of the major benefits of the Victorian Human Rights Charter to be

the continuing integration of human rights into decision making and policy
formulation ... with departments beginning to demonstrate an understanding of
the Charter as a set of underlying principles that guide daily practice.

Similar observations have been made about the impact of the UK Human Rights
Act on embedding human rights principles into the daily practice of public
bodies.[6]

The Commission supports the public service in its leadership role driving a
cultural change that places human rights as a central consideration in policy
development, in decision making and in service delivery.

At the same time, the overall Commission goal is to give greater prominence
to human rights at all levels of society.

One of the Commission’s greatest challenges is to help strengthen
Australia’s human rights culture so that all Australians believe and
understand that ‘human rights’ is about all of us and our lives
everywhere and everyday.

The Commission is therefore increasing our focus on building rights awareness
and empowering not only the most vulnerable communities experiencing human
rights abuses, but also the community at large.

It will be a priority for the Commission not only to leverage our education
expertise and relationships with specific vulnerable communities but also to
broaden our focus by engaging with members of the general community so that we
all become active participants in creating a fairer and better Australia

In our educative role, we work with all sectors of society to improve human
rights consciousness. We will be using a mix of activities to help achieve this
long term goal – ranging from developing broad community information,
education and engagement campaigns and programs, to working with government to
build stronger human rights laws, policies and practices, to resolving
discrimination and human rights complaints.

Some examples of our work in this regard include the recently launched
materials on Workers with mental illness: a practical guide for managers.
This guide was developed to help employers better understand mental ill-health
and ensure the dignity and rights of workers with mental ill-health are
respected in their workplaces.

The Sex Discrimination Commissioner has developed strong partnerships with
large businesses to address ongoing inequality between men and women in
corporate Australia. The Commission has been managing a number of projects under
the Community Partnerships for Human Rights program to increase social inclusion
and counter discrimination experienced by minority communities in Australia.
These are just some examples of the types of activities we hope will build
understanding and respect and strengthen the human rights culture within the
community at large.

Through the Commission’s strategic planning process for 2010-11, we
have also decided to place a significant focus in our work on issues relating to
violence, harassment and bullying. We know that this is an important focus for
the Government a well.

Most people in Australia have had some experience of violence, harassment or
bullying, or know someone who has. It is an issue that impacts on all of us
individually, and as a community, because we all want to feel safe and included
in everyday life.

The Commission will be taking a multi-faceted approach to addressing this
important human rights issue. We will be building on our existing work which
monitors and develops systemic law and policy reforms intended to reduce
violence and harassment in specific communities – for example family
violence in indigenous communities, sexual harassment in the workplace and
violence directed at international students.

We will also be developing new strategies designed to encourage all members
of the community to take part in creating a safer and more inclusive Australia.
We will start by focussing on bullying in the cyber-world and looking at
strategies to inform and empower people on the internet to intervene in
situations which they believe amount to bullying or harassment. We will work
closely with partners already engaged in this space to ensure everyone has a
safer experience online including the government, internet providers, community
organisations and the young people who are most active in this space.

5 Conclusion

The last eighteen months has seen a remarkable amount of public discussion
about human rights in Australia. This Department has played a leadership role in
developing the Human Rights Framework. I urge you to continue in that important
role as the Framework is rolled out. Particularly important will be your efforts
to lead other departments in bringing human rights to mind early in the policy
development process. The Australian people will be well served by a public
sector that has a greater awareness of the human rights implications of law and
policy.

The Human Rights Framework presents an opportunity for positive changes to
Australia’s human rights record and reputation. We look forward to
continuing to work with the Department to realise this opportunity to enhance
the protection and promotion of human rights in Australia.


[1] Asia Pacific Forum, International Standards for National Human Rights Institutions, available
at http://www.asiapacificforum.net/members/international-standards
[2] United Nations Office of the
High Commissioner for Human Rights, Fact Sheet No. 19, National Institutions for
the Promotion and Protection of Human Rights, available at http://www.ohchr.org/EN/PublicationsResources/Pages/FactSheets.aspx
[3] Louise Arbour, interview with
George Negus, SBS Dateline,19 March 2008, transcript available at http://www.sbs.com.au/dateline/story/transcript/id/543024/n/Interview-with-Louise-Arbour
[4] Human Rights (Parliamentary
Scrutiny) Bill 2010, s6.
[5] National Human Rights Consultation Report, 2009,
Foreword
[6] British Institute of
Human Rights, The Human Rights Act - Changing Lives (2nd ed.,
2008), p 21. At http://www.bihr.org.uk/sites/default/files/The%20Human%20Rights%20Act%20-%20Changing%20Lives.pdf (viewed 23 March 2009).