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Annual Report 2002-2003: Chapter 6

Human Rights and Equal Opportunity Commission: Annual Report 2002 - 2003

6: Human Rights

Human Rights Commissioner

Dr Sev Ozdowski OAMDr
Sev Ozdowski OAM was appointed Human Rights Commissioner in December 2000
for a five-year term.

Statement from the Commissioner

In the contemporary world, especially amongst first
world economies, the culture of civil liberties, freedoms and non-discrimination
are reasonably well established and these precepts have clear links to
innovation, creativity and the broader concepts of economic productivity
and a well-functioning civil society.

But also in this same contemporary world, especially
in countries such as Australia, where human rights has been most advanced
and unfettered we are starting to witness some calling for a ‘tightening
of the human rights belt’. Many people are prepared to accept a
more flexible approach to, or even reduction in, civil liberties in order
to: defeat terrorism; confront the problems arising from unauthorised
people movements, and; combat international crime – drugs, money
laundering and people trafficking to name but some key issues.

These reductions are being made by governments of the
day, usually with the tacit support of a large segment of the population,
at least as measured by focus groups and talk back radio. While a democracy
must always be attuned to majority opinion, a human rights commission
in a democracy must also be conscious of the dangers that can arise when
the values espoused by civil liberties’ advocates are drowned out
by the roar from the Colosseum.

Decisions may be taken in the heat of the moment (eg
following the September 11 terrorist attack or the Bali bombing) without
due consideration of human rights principles. This is probably inevitable,
but we must not lose sight of the fact that these principles are capable
of delivering wisdom and balance, a combination that has served Australians
well in the past and could be said to represent the bulwarks of democracy.

In this environment it is all the more puzzling why
there is still such a comparative lack of penetration for civil and political
rights issues into heartland Australian communities; despite the fact
that the Commission’s website received an astonishing 4 372 899
page views during 2002–03.

This state of affairs is in manifest contradistinction
to the broader community recognition accorded to the anti-discrimination
laws dealing with equality, which enjoy a profile that would be envied
by any national mass marketing exercise in ‘awareness raising’
conducted by one of the consumer retail chains. The manner in which these
equality laws have embedded themselves in the national consciousness over
the last 20 years in an educative sense is quite remarkable. Therefore,
given that the same effort has been put into promoting civil and political
rights in that period, why do they currently languish as the ‘cinderella’
of the Australian human rights story?

One of the more important reasons for this distinction,
I believe, lies in the fact that the civil and political menu lacks a
‘hook’ that could more readily engage the attention of the
general populace. Specifically, when discussing human rights concepts,
one moves from vast universal themes analogous to a latter-day Homeric
epic, to an everyday ‘common or garden variety’ example of,
well, nothing much really. Imagine yourself addressing a community group
in a suburban setting anywhere in Australia and the challenge that presents
itself is to make civil and political rights relevant to your audience’s
everyday cares and woes! If you are able to make such a link, the ultimate
solution of a report to federal Parliament appears a little tame, compared
with the robustness of the court sanctioned disciplines available under
the equality provisions.

As I have endeavoured to establish in my work as Human
Rights Commissioner, this failure to fully embed human rights in the domestic
legal framework in a similar manner to equality rights, may also be unwittingly
responsible for subtle community resistance to important social and economic
improvements that our political leaders are keen for us to embrace. It
is axiomatic that the deregulated economic model, espoused in Australia
by governments of all persuasions is here to stay. We, the Australian
community have been asked to take at face value the proposition that,
if we are going to be competitive in world markets, we must take more
individual responsibility for our economic productivity, leaving governments
free to concentrate on the basic service provision of health, education,
defence and law and order.

But these dramatic changes are occurring against a
backdrop of diminishing institutional protections. Trade unions face declining
membership and relevance; parliament is dominated by the necessary discipline
of ‘party line’ voting; courts can only work within the framework
of the law and the media are ultimately responsible only to their shareholders.
Little wonder then that some Australians feel isolated and threatened
by the ‘new economic order’ and sometime exhibit a strong
sense of resentment towards their governments.

Arguably, an Australian Bill of Rights, giving rise
to legally enforceable outcomes, could restore some sense of balance.
If individual Australians were confident that the requirement to become
economically more self reliant was underpinned by a safety net of enforceable
rights, they might feel more relaxed about their increasingly deregulated
world and it could also form the basis of a new ‘social contract’
with the government.

Of course as I noted at the outset, events such as
September 11, Afghanistan, Bali and the war in Iraq have added complexity
to this issue. Australians who believe in basic human rights are also
naturally concerned about their security. Human rights are fragile things
in the face of terror and in the absence of security.

The proposed curtailing of personal freedoms in response
to the ‘war on terrorism’ which is broadly accepted, in my
view makes a judicially enforceable Bill of Rights even more essential.
In absence of legislated rights, it is difficult to measure what we are
being asked to give up, when security measures are proposed. We have no
easy way to assess the ‘proportionality’ of the proposals.

The Australian Government’s recent parliamentary
experience with the ASIO Bill is a good case in point. My upbringing and
experience under a communist regime in Poland has given me a healthy dose
of scepticism when it comes to the Executive’s use of ‘intelligence
services’. It therefore came as no surprise to me that some Senators
laboured so long and hard to try and establish exactly what the proposed
legislation would mean in practice.

And what a difficult task that proved to be. Even so,
the Bill that was finally approved with the support of the major opposition
party contains a number of challenging features from a human rights perspective.
The feature of the ASIO Bill applying to minors aged between 16 and 18,
in the Commission’s view: “raises issues of Australia’s
compliance with the Convention on the Rights of the Child, which requires
that detention of a child (meaning a person under the age of 18) should
be used only as a measure of last resort and for the shortest appropriate
period of time. Those obligations apply even to children convicted of
serious crimes. They apply with more force where, as is the case under
the ASIO Act, one is dealing with the detention of unconvicted children,
who need not be charged with any offence and may ultimately be found to
be innocent of any wrongdoing.

It is also relevant to note that the ASIO Act provides
for significantly greater periods of detention than the Crimes Act
(Cth) which already makes careful and measured provision for
the detention and questioning of children arrested on suspicion of having
committed a crime. Under the ASIO Act a person aged between 16 and 18
may be detained for periods of up to seven days under any one warrant.
In contrast, the Crimes Act provides for a maximum of two hours detention
(not including time taken for matters such as consulting legal representatives)”.

I am not suggesting that the pre-existence of a Bill
of Rights would automatically preclude a government from implementing
legislation such as the ASIO Bill. The British Government’s experience
demonstrated that this is not so when they passed similar laws. The difference
is that in Britain the Home Secretary was required formally to suspend
the operation of the Human Rights Act in order to implement those sections
of the proposed Bills which were contrary to the Human Rights Act. This
has the effect of putting the parliament and their constituents ‘on
notice’ that existing ‘rights’ are under question, thereby
concentrating everyone’s attention, and most importantly, permitting
proper consideration of the vital issue of proportionality.

As Cherie Blair QC, civil rights campaigner and wife
of the British Prime Minister noted recently in Australia: “The
most significant impact of the Human Rights Act has been the way in which
the language of human rights has begun to permeate the consciousness of
individuals and organisations, and thereby to inform the policies and
practices of governmental and non-governmental bodies alike”.

To “permeate the consciousness of individuals”,
is at the heart of what I could term ‘the holy grail of human rights’
in Australia; namely how do we all better infuse our fellow Australians
with an understanding of human rights? On this objective I am certainly
at one with our Attorney-General, Daryl Williams QC, when introducing Australian Human Rights Commission Bill 2003 (Cth) said of human
rights education that it is designed to “make information on human
rights the central focus of the new Commission’s functions”
and to do that there is a “need to re-order the Commission’s
sets of powers such that the education/research functions appear first”.

However, the Commission is not convinced that the measures
outlined in the Bill are the best means of achieving the desired outcome.
Nevertheless, I welcome the opportunity the Bill provides to generate
a widespread national discussion on the necessary objectives of human
rights education.

National Inquiries

Progress report on Inquiry into Children in Immigration

CIDI logo Introduction

It had been anticipated, as indicated in last year’s
Annual Report, that the Inquiry might have completed a draft report by
the end of 2002, which in turn would result in a publicly available final
report in the course of 2003. It now appears that this was an overly optimistic
assumption and that a publicly available final report will now not be
available until 2004. The main reasons behind this timetabling change
are twofold; firstly, the Inquiry has assembled a substantial body of
evidence and its proper consideration necessitates very careful and time-consuming
analysis. This has been the case for both the Inquiry itself and the respondent
bodies, the Department of Immigration and Multicultural and Indigenous
Affairs (DIMIA) and Australasian Correctional Management (ACM). Secondly,
under the provisions of the Human Rights and Equal Opportunity Act 1986 (HREOCA) empowering this Inquiry, maintenance of the
appropriate balance between the Inquiry’s capacity to inform itself
in any way it sees fit and the requirement to afford DIMIA/ACM with the
appropriate standard of common law procedural fairness, requires the Inquiry
to proceed with a high degree of diligence.

Nevertheless I remain confident that the final report
will, by virtue of its exhaustive processes of examination and analytical
rigour, amply compensate for the length of its gestation.

Inquiry Commissioner Dr Sev Ozdowski (centre)
Inquiry Commissioner Dr Sev Ozdowski (centre)
with Assistant Commissioners, Dr Robin Sullivan (right) and Professor Trang Thomas (left).



It is also proposed to release “A Guide to the
Findings and Recommendations of the Inquiry into Children in Immigration
Detention” as an explanatory adjunct to the full report. A similar
procedure was followed with the Bringing them home report.


Since the announcement of the Inquiry in November
2001 the Inquiry has received 341 submissions, including 70 confidential
submissions. These submissions have taken a variety of forms including
tapes, drawings and poetry, as well as detailed commentary from organisations
representing detainees, human rights and legal bodies, members of the
public, religious organisations, state government agencies and a range
of non-government policy and service providing groups.

Most of the public submissions for which the Inquiry
was able to obtain an electronic copy have been placed on the Commission’s
website. Public hearings have been held during 2002 in: Melbourne 30–31
May; Perth 10 June; Adelaide 1–2 July; Sydney 15–17 July;
Brisbane 5 August; Sydney 2–5 December (DIMIA/ACM).

Visits to immigration detention facilities in 2002
included: Christmas Island, January; Cocos (Keeling) Islands, January;
Woomera, January, end June and September; Maribyrnong, May; Perth, Port
Hedland and Curtin, June; Villawood, August and Baxter; December.

Focus groups with former detainees now living in the
Australian community were held in: Adelaide – eight focus groups;
Brisbane – two focus groups; Perth – five focus groups; Melbourne
– 10 focus groups and Sydney – five focus groups.

The Inquiry Commissioner was assisted in his
work by two Assistant Commissioners: Dr Robyn Sullivan, Queensland Commissioner
for Children and Young People and Professor Trang Thomas, Professor of
Psychology at RMIT in Victoria.

Submissions to federal Parliament

An important part of a Commissioner’s work
within the structure of the Commission involves formal interaction with
federal Parliament. This may take the form of tabling reports via the
Attorney-General, appearing before parliamentary committees or making
written submissions. In 2002–03, the Commissioner was involved in
all three exercises.

In late-July 2002, the Commissioner made a written
submission to the Senate Legal and Constitutional References Committee
into their Inquiry into the proposed Migration Legislation Amendment (Further
Border Protection) Bill 2002. The submission recommended that parliament
should not approve the Bill. The committee’s report was tabled in
October 2002 and also recommended against approving the Bill. In the course
of its report, the committee made favourable reference to the Commission’s
submission in relation to Australia’s non-refoulement obligations
and the fact that reliance on a non-compellable ministerial discretion,
waiving the prohibition on visa application, is an inadequate recognition
of Australia’s human rights obligations.

In mid-August 2002, the Commissioner appeared before
the Human Rights Sub-Committee of the Joint Standing Committee on Foreign
Affairs, Defence and Trade. The subject matter of the sub-committee’s
Inquiry was ‘Aspects of HREOC’s Annual Report 2000–01
concerning immigration detention centres’. The Commissioner responded
to a variety of different questions from the members of the sub-committee
concerning conditions in immigration detention centres (IDCs), especially
as they related to mental health and children. As the Commissioner had
extensively visited all IDCs in the course of both his ‘2001 Report
on IDCs’ and the National Inquiry into Children in Immigration Detention,
the exchanges between himself and members of the sub-committee were particularly

In mid-October 2002, the Attorney-General effected
parliamentary tabling of the Commissioner’s ‘Report on visits
to Immigration Detention Facilities by the Human Rights Commissioner –
2001’. This allowed for public release of the report and distribution
of copies to a broad spectrum of NGOs and relevant individuals. The details
of the report were extensively foreshadowed in last year’s Annual
Report. The Commissioner intends this report to be a regular feature of
his work.

In late-June 2003, the Commissioner made a supplementary
submission to the ‘Inquiry into human rights and good governance
education, in the Asia-Pacific region’, conducted by the Human Rights
Sub-Committee of the Joint Standing Committee on Foreign Affairs, Defence
and Trade. This submission was preceded with an appearance by the Commission
before the sub-committee, as a result the Commission undertook to respond
to a number of additional questions, the answers to which also assumed
the status of a supplementary submission. The Commissioner’s supplementary
submission focussed on the paradox of the relatively high educative profile
enjoyed by the equality provisions of HREOCA, compared to the human rights
provisions. The Commissioner’s submission suggested that this was
largely attributable to the fact that human rights’ breaches in
Australia are not subject to judicial oversight and sanction when so proven.

Human rights

A key function of the Commission is to “promote
an understanding and acceptance, and the public discussion, of human rights
in Australia”. Within the context of his National Human Rights Dialogue,
the Commissioner has continued to meet with a wide cross-section of the
Australian community by attending meetings, seminars and workshops where
discussion occurred on topics such as:

  • What are international human rights?
  • Which rights are most valuable to us?
  • Is there a hierarchy of rights?
  • What rights are well protected in Australia?
  • Which rights need better protection?
  • What happens when rights conflict?

In order to illuminate these discussions, the Commissioner
has found it useful to deal with an issue which is familiar to most Australians,
such as long-term immigration detention and mental health, as a practical
example of human rights challenges that confront us on our own doorstep.
Within this general concept, he has delivered 11 major addresses in the
year under review to conferences throughout Australia. These talks have
been in diverse locations such as Bathurst and Tweed Heads in regional
New South Wales to major capital cities including Brisbane, Adelaide,
Sydney and Melbourne.

This context has been occasioned by the Commissioner’s
many visits to remote location detention centres, which have enabled him
to accurately gauge the deleterious effects of long-term detention on
the mental health of particular individuals. From this he has developed
human rights themes, such as the role of international conventions like
the International Covenant on Civil and Political Rights (ICCPR)
and the Convention on the Rights of the Child (CRC), and their
intersection with our domestic law, embodied in this case in of the Migration
Act 1958
(Cth). This naturally leads to consideration of security
issues in a post 9/11, Bali, Iraq War world and the challenge of balancing
these, and concepts of border protection and national sovereignty, with
human rights principles.

The Commissioner does not think it is coincidental
that recent community polling reveals that currently 70–75 percent
of those sampled believe that children should be released from immigration
detention, compared to the view ‘post-Tampa’, where 75 percent
of those sampled approved of the government’s action. Many educative
factors are clearly at work here, but one of the outcomes is undoubtedly
a heightened level of understanding about human rights in the Australian

One notable offshoot of the Commissioner’s discussions
about mental health in detention and its link with human rights, has been
a number of requests to revisit the 1993 Report of the National Inquiry
into the Human Rights of People with Mental Illness
, colloquially
known as the “Burdekin Report”. At the conclusion of the Inquiry
into Children in Immigration Detention, the Commissioner will decide whether
he has anything additional to offer in the area of mental health that
has not already been the subject of examination by other bodies.

Finally, as alluded to in his opening statement, the
Commissioner has been assiduous in arguing for the introduction of an
Australian Bill of Rights, as a practical tool to demonstrate how human
rights could have a practical, day-to-day effect on average Australians’
lives. In the course of the last year he delivered another four major
addresses on this topic, as well as speaking on it less formally to many
community gatherings.

International activities

Meeting of the International Coordinating Committee
of National Institutions for the promotion and protection of Human Rights
(ICC); and the 59th Session of the UN Commission on Human Rights

In April 2003, the Commissioner attended (as
the Commission’s representative) the above meetings in Geneva. The
ICC comprises 16 members, four each from the regions of Europe, Asia Pacific,
the Americas and Africa. Australia is currently one of the Asia Pacific
delegates to the ICC.

The ICC meeting focused once again on the status of
National Institutions (NI) that complied with the Paris Principles against
those that did not.

Canada, on behalf of Australia and France, presented
to the ICC as previously requested a preliminary analysis of options for
enhancement of the role of NIs at the UN’s Economic and Social Council
(ECOSOC). Canada noted that this issue involves questions of substance
and process. Substance relates to the status of NIs, how to distinguish
those that complied with the Paris Principles from those that do not,
and whether NIs should for example, push to speak under all/any agenda
items, make written statements or seek to intervene after the high level
stage of the Commission for Human Rights (CHR).

Any solutions would also need to consider issues such
as, participation in other functional Commissions and the Commission on
the Status of Women for instance. In that light there is no question that
the easiest solution would be by way of amendment to the ECOSOC rules,
however this outcome will not be readily achieved.

The meeting then agreed to the request of the working
party that further work be done and reported on at the next ICC meeting.
Accordingly, Canada will provide another draft paper to Australia and
France for comment.

Other issues covered included:

  • a Danish paper on technical cooperation between
  • developments concerning UN treaty bodies and
    the capacity for NIs to input
  • the credentialing of 16 NIs
  • agreement as to composition of the next credentialing

59th Session of the UN Commission on Human Rights

Under agenda item 18(b) which concerns NIs, the Commissioner
gave the permitted four-minute address on the work of the Commission over
the last year.

The Sino-Australian Seminar on Alternate Dispute
Resolution and the Modern Rule of Law

In mid-November 2002, the Commissioner attended
the above seminar in Beijing which was organised to implement a Memorandum
of Understanding between the Chinese Ministry of Justice and the University
of Victoria. It was sponsored by the Department of Judicial Assistance
and Foreign Affairs, the Judicial Research Institute and the Department
of Guiding Grass-Root Work of the Ministry of Justice and the Victorian
University. The sponsorship extended to support of the Commissioner’s
participation in the seminar.

The seminar was given high official status in Beijing
(reported in official press) and involved many senior officials from both

The seminar focused on the role of law in modern society
and issues associated with alternative dispute resolution (ADR). In particular,
papers were presented that dealt with:

  • dispute resolution of commercial litigation
    in the international arena – this was of particular relevance
    to China’s recent membership to the WTO
  • history of alternative dispute resolution in
    China and Australia
  • the proper balance between the courts and ADR
    – this dealt with the issues of the rule of law, the role and
    efficiency of courts vis-a-vis ADR, governments’ involvement in
    ADR and sanctioning of its outcomes and possible extension of ADR to
    criminal law
  • different models and procedures used in dispute

The Commissioner delivered a paper on “The Australian
Experience with Tribunals, Commissions and Ombudsmen”, which focused
on the complaint handling function of the Commission.

Attendance at the 1st International Congress on Child

In late-October 2002, the Commissioner visited
New Orleans to deliver a keynote address to the above congress. In the
speech he concentrated on international trends in child movement, both
voluntary and involuntary, and the need for international cooperation.
The congress called upon the UN to establish an international day of Child

The Commissioner was also invited to join the Scientific
Committee responsible for assessing the proposed papers and overseeing
the format of the congress.


A selection of public addresses made by the Human
Rights Commissioner during 2002–03 are listed below and are available
online at

Statement by Dr Sev Ozdowski, 59th Session
of the Commission on Human Rights, Geneva, Switzerland, 14–17 April

Long-term detention and mental health,
2nd Public Health Association of Australia “Incarceration Conference”,
2 April 2003 at the Mercure Hotel, Brisbane.

A Charter of Citizen’s Rights –
Will this benefit Multiculturalism in Australia?
, 2002 FECCA National
Conference on Setting the Agenda for a Multicultural Australia, 5–7
December 2002, Canberra.

The Australian Experience with Tribunals,
Commissions and Ombudsmen,
Sino-Australian Seminar on Alternative
Dispute Resolution and The Modern Rule of Law, hosted by the Chinese Ministry
of Justice in Beijing, PRC, 20–22 November 2002.

The rights of the child and international
human rights law
, 1st International Congress on Child Migration,
Hyatt Regency, New Orleans, 29 October 2002.

Long-term detention and mental health, 1st iMHLP International Mental Health Development Conference: ‘Developing
Leadership for Mental Health’, Rydges Hotel, Victoria, 18 October

The human rights of vulnerable children in
9th National Conference of the Association for the Welfare
of Child Health: “Healthy Justice for Children and Young People”,
All Seasons Premier Menzies Hotel, Sydney, 10 October 2002.

Waverley Council’s Refugee Week,
Waverley Library Theatrette, Sydney, 9 October 2002.

Asylum Seekers, meeting of the Great
Lakes Rural Australians for Refugees Group, Forster High School, Forster,
NSW, 2 October 2002.

Lessons from the UN Special Session on Children,
Association of Children’s Welfare Agencies Conference, Swiss Grand
Hotel, Bondi, NSW, 3 September 2002.