What does it mean to believe in human rights in Australia today?

The University of Newcastle Annual Human
Rights and Social Justice Lecture

The Honourable Catherine Branson QC

President, Australian Human Rights
Commission

2 September 2010

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1 Introduction

It is a great honour to have been invited to deliver the annual University of
Newcastle Social Justice Lecture.

I would like to begin by acknowledging the Traditional Owners of this land,
the Pambalong clan of the Awabakal people, and pay my respect to their elders,
past and present. Today I would like to explore the question: ‘What does
it mean to believe in human rights in Australia today?’ This is an
ambitious project, and I am aware that the question does not have a short and
simple answer.

The Australian Human Rights Commission itself recently grappled with the
question of what it means to promote and protect human rights in Australia.
Essentially, we asked: Who are we? What do we do? And perhaps most importantly:
Why do we do what we do? We were searching for a way to articulate a broad
shared understanding of the human rights concept. We settled on the vision of
human rights for ‘everyone, everywhere, everyday’.

The challenge we set ourselves was to both convey the universal nature of
human rights; and to make human rights relevant to everyday life.

The question of what it means to believe in human rights in Australia today
requires contemplation of the implications of universality. Every person in
Australia, by virtue of their humanity, is entitled to enjoy certain fundamental
human rights. This is conveyed in inspirational terms in the Universal
Declaration of Human Rights which recognises that ‘the inherent dignity
and the equal and inalienable rights of all members of the human family is the
foundation of freedom, justice and peace in the
world’.^[1]

The Declaration in this statement draws a clear connection between human
rights and democracy – equality is both a fundamental human rights
principle and a foundational principle of modern democracies such as
Australia.

If all people have equal entitlement to the enjoyment of fundamental human
rights, and if our democracy is founded on the principle of equality, one might
expect that our democratic institutions adequately protect human rights.
Ironically, this is not always the case.

To believe in human rights in Australia today requires acceptance of the idea
that human rights really are for ‘everyone, everywhere, everyday’
– that we are all enriched when the rights of the most vulnerable amongst
us are adequately protected. Believing in human rights also requires honest
consideration of whether our democracy is adequately rights respecting, and of
what could be done to further build a rights-respecting culture within our
democratic institutions.

2 What do people in Australia think about the
protection and promotion of human rights?

So what do we know about the importance that people in Australia place upon
the protection of human rights?

Last year this question was considered in part through the National Human
Rights Consultation – one of the largest public consultations in
Australian history.

Overwhelmingly, the message from those who participated in the National
Consultation was that human rights matter. They told the Committee of their deep
concern about serious breaches of human rights over the past decade, including
the suspension of the Racial Discrimination Act 1975 (Cth) in order to implement
the Northern Territory Emergency Response, the lengthy, and potentially
indefinite, mandatory detention of asylum seekers, and the increase in law
enforcement agencies’ powers as a result of new national security laws.
The Committee reported that it ‘gained the sense that the power of the
executive arm of government needs to be checked’.

Participants in the Consultation told the Committee that human rights are not
abstract concepts, but that they are relevant to actual everyday experience.
They mentioned basic rights, such as the right to the highest attainable
standard of health, the right to an adequate standard of living, the right to
adequate housing and the right to education. Many people told the Committee of
their concern that vulnerable groups such as Aboriginal and Torres Strait
Islander people, people experiencing homelessness, the mentally ill, people with
disabilities, people in rural and remote Australia, the elderly and children in
care often miss out on the fulfillment of some of their basic rights.

The majority of those who participated in the National Consultation expressed
the view that human rights are currently inadequately protected in Australia.

However a strong counter-argument was made in some submissions, and in public
commentary surrounding the National Consultation. This was that human rights are
adequately protected by Australia’s strong democratic institutions,
including our representative Parliament; the distribution of power in our
federal system of government; the separation of powers; the doctrine of
responsible government; our system of bicameral parliaments; parliamentary
committees; and our free press.

As we await the outcome of the recent federal election, we can see a
demonstration of the importance of better protecting human rights in Australia.
In many interviews, the four independents who have such an important role in
determining our next government have continually emphasised human rights
considerations affecting the constituencies that they represent. Most clearly,
they have identified a lack of services to rural and remote communities, and
that they feel that their constituents have not been listened to for some time.
While they have framed their concerns in terms of the need for parliamentary
reform and greater transparency, they are in fact talking about deficiencies in
human rights protections.

3 Human rights and the foundation of modern liberal
democracy

It is important to recall that recognition and protection of certain civil
rights was a critical feature of the development of modern liberal democracy.
This is evident in the Magna Carta, which for the first time placed a limit on
the legitimate exercise of power by the King, and sought to protect the rights
of some of his subjects. Some time later, intellectuals like Hobbes and Locke
put forward theories about the relationship between the individual and the
State.

In doing so, they began to lay the foundations of both liberal democracy and
human rights: they wrote that all human beings were equal in dignity; they
valued the idea of individual liberty and freedom; and argued that, by virtue of
these human characteristics, there should be limits to executive power. This was
the beginning of the idea that legislative authority belonged to the united will
of the people.

These persuasive ideas were captured in influential documents such as the
1689 English Bill of Rights which cemented the role of the Parliament, and the
American Declaration of Independence which declares that government derive
‘their just powers from the consent of the governed’ and that the
people have the right ‘to alter or abolish’ a government and
‘institute a new government’.

4 Are human rights fundamental to modern
democracy?

These ideas remain prevalent in modern democracies such as Australia. The
critical nexus between human rights and democracy is aptly characterised by
Professor David Kinley. He sees the foundations of political democracy as
located in the protection of civil and political rights such as the right to
vote, freedom of expression, assembly, movement and thought, non-discrimination
and equality before the law. The foundation of social democracy, he says, is
located in fair and equal access to economic and social rights such as housing,
health and education.^[2]

Undoubtedly, belief in the importance of protecting both of these categories
of rights is critical to our conception of Australia as a modern democracy and
as a fair country in which to live. However, while we virtually take for granted
formal protection of many of the foundational elements of our political
democracy (our Westminster system of government, universal adult franchise, the
right of political communication, to give just some examples of protections
contained in our constitution), formal protection of our social democracy
remains highly controversial.

If we believe in the protection of human rights we must ask ourselves whether
our democratic institutions really do provide adequate protection of all human
rights. Arguably they do not: our Parliament can make laws that breach human
rights without providing explicit justification; human rights can be overlooked
in law and policy development processes; and Australia does not always provide
effective remedies for human rights breaches.

It is ironic that democratic processes are unable to ensure the adequate
protection of human rights, when rights protection is a fundamental element of
democracy itself. It is true that federal members of Parliament are held
accountable at the ballot-box, in the case of the lower house, every three
years. However, elections express the will of the majority, and a majority view
is not always aware of, let alone sympathetic to, the need to treat justly and
fairly those whose voices do not form a significant part of mainstream political
discourse. I am not speaking only of Aboriginal Australians and Muslim
Australians (both groups who, incidentally, have for the very first time seen
one of their own elected to the House of Representatives at the recent
election). I am speaking also of those who live outside our major cities,
recently arrived immigrant communities, of children, of the homeless, of many
people with disability and of those with lasting mental ill-health and their
carers. You will be able to think of others marginalised in Australian political
discourse.

There is, I think, a fear held by many that requiring governments to respect
human rights will require them to protect individual or minority interests at
the expense of community interests or the interest of the majority. There are, I
believe, at least two answers to this concern.

The first is that in the long term, protecting human rights strengthens,
rather than undermines, democracy in the interest of everyone. This idea was
eloquently articulated by the former Chief Justice of the Israel Supreme Court
when bringing down that court’s decision that torture was unlawful even in
a ticking bomb situation. His Honour said:

We are aware that this decision does not ease dealing with [the harsh]
reality. This is the destiny of democracy, as not all means are acceptable to
it, and not all practices are open to it. Although a democracy must sometimes
fight with one hand tied behind its back, it nonetheless has the upper hand.
Preserving the rule of law and recognition of an individual’s liberty
constitutes an important component in its understanding of security. At the end
of the day they strengthen its spirit and strength and allow it to overcome its
difficulties.^[3]

The second answer to this fear is that, unlike the right not to be subjected
to torture, most human rights are not absolute. Human rights law accommodates
the tension between the protection of individual or minority interests and
community or majority interests by requiring that competing rights be balanced
one against the other. In particular, it calls for proportionate responses to
the need for community protection. That is, a balancing exercise that results in
measures taken in the general interest that are proportionate both to the aim
pursued and the effect on the individual interest
concerned.^[4] We all intuitively
understand this requirement of proportionality in the balancing of human rights.
It is encapsulated in the aphorisms about freedom of speech not extending to
falsely shouting ‘fire’ in crowded theatres and the freedom to move
one’s fist in any direction being limited by the position of one’s
neighbour’s nose. Concerns about proportionality also inform our
consideration, for example, of the extent to which it is legitimate for
governments to impinge on long treasured individual freedoms, such as the right
not to be detained without charge, in the interest of protecting the
community’s right to live free from violence.

However, there is, I suggest, a deficit in Australia’s present
democratic processes in that currently our law and policy makers are not
required even to give consideration to human rights. And, in the absence of this
requirement, democratic processes can operate either too slowly, or too quickly,
to ensure that fundamental human rights are protected. This often results in
breaches of the human rights of the more vulnerable amongst us. If we believe
that human rights are universal, we should insist that our democratic
institutions better protect the rights of all people in Australia, but
especially those of people whose voices tend to carry little weight in public
debate.

I will illustrate the limits of democracy in achieving adequate human rights
protection with two relevant, recent examples.

4.1 Democratic processes can be too
slow

That democratic processes can at times be too slow is demonstrated in the
example of Australia’s failure to ensure the adequate protection of the
human rights of children held in immigration detention.

Since the early 1990s, the vast majority people who seek asylum in Australia,
if they arrive without a valid visa, have been held in immigration detention.
This includes families with children and unaccompanied minors.

In 2004, the Australian Human Rights Commission published the report of the
National Inquiry into Children in Immigration Detention. It found that between
2000 – 2002 children were held in high security immigration detention
facilities, often in remote locations, in breach of the rights contained in the Convention on the Rights of the Child. The report found that the
conditions in detention failed these children. They were not protected from
physical and mental violence; did not receive an appropriate standard of
physical and mental health; and unaccompanied children were not given the
special protection that they needed.

In 2005, a year after the publication of this report, there was some change.
The Migration Act was amended to affirm ‘as a principle’ that a
minor should only be detained as a measure of last
resort^[5] and to allow the Minister to
place families with children, unaccompanied minors and other vulnerable people
in community-based detention rather than closed detention facilities.

Democratic processes including the Commission report and a concerted advocacy
movement contributed to these changes.

However they only came about as a result of the courageous actions of the
parliamentarian, Mr Petro Georgiou, and a few colleagues from the Liberal Party,
who negotiated this outcome with the then Prime Minister John Howard. Democracy
moved very slowly for children in immigration detention. Those directly affected
by this failure to respect basis human rights were amongst the most marginalised
in the Australian political discourse of the day. It is not surprising that it
took quite some time before the human cost of the policy was fully appreciated
by the Australian community and our political leaders.

These changes were a significant step in the right direction. However, the
Commission has repeatedly argued that there remains inadequate protection of the
rights of asylum-seeking children. Children are no longer held in secure
immigration detention centres. However, as I speak today there are over 700
children in immigration detention throughout Australia – they are held in
low security facilities, and the conditions of detention have improved. However,
the Community Detention system that was established in 2005 is rarely being
used. Children remain in immigration detention, often for periods of many
months, their liberty severely restricted, while applications for refugee status
are assessed.

4.2 Democratic processes can be too swift

In contrast to this example, sometime democracy moves too quickly for there
to be proper consideration of human rights, particularly in times of perceived
emergency. Take for example, the Northern Territory Emergency Response
legislation, which contained far reaching measures that discriminated on the
basis of race.

The Commission did not and does not dispute that the Australian Government
has an obligation to promote and protect the right of Aboriginal people to be
free from family violence and child abuse. However, the Commission does not
accept that to take the urgent action necessary to protect the rights of
children and families it is necessary to discriminate on the basis of race.

The haste with which this legislation was introduced limited both the
potential for adequate consultation with Aboriginal people and adequate
consideration of whether less-restrictive and non-discriminatory action could
have been taken to protect the rights of children and families.

The Emergency Response legislation was introduced on 7 August 2007, and
passed through the House of Representatives that same day. This is quite
remarkable given the legislative package contained five separate bills and was
480 pages long.^[6] The following day a
Senate Inquiry was called, with two day’s notice for public hearings. Only
five days passed before a report was tabled. The entire legislative process was
concluded within ten days of the bills being introduced in Parliament. This was
a scandalously abbreviated parliamentary process for a complex legislative
process that limited fundamental human rights. It is particularly so given the
international requirement, articulated in the United Nations Declaration on the
Rights of Indigenous Peoples, for real and meaningful consultation with
Indigenous peoples who will be affected by government policies and
decisions.^[7] There was, you may
recall, no Aboriginal representative in either house of Parliament at the
time.

4.3 A good system of human rights
protection

So how can we ensure that our democratic institutions better protect and
promote the human rights of all people in Australia, especially those of the
most vulnerable amongst us? Or to put it another way, how can we embed into our
law and policy- making processes the principles necessary to ensure that as a
nation we respect fundamental human rights?

I believe that in a well-functioning democracy, one in which social democracy
as well as political democracy is valued, it is essential that consideration is
given to human rights at all levels, and by all branches of government.

The building blocks of such a system include a Parliament that considers the
human rights implications of all new laws and government decision-makers who
respect human rights when implementing laws, developing policy and delivering
public services.

It is, of course, the case that the very best protection of human rights is a
national culture or ethos highly attuned to failures to respect human rights and
a population willing to use the ballot box to discipline those responsible for
any such failures. Unfortunately, as the report of the National Human Rights
Consultation shows, Australia is a long way from having a well-developed human
rights culture. Many people in Australia are not familiar with either their own
human rights or their obligation to respect the human rights of others.

The Commission strongly supports the key features of the national Human
Rights Framework, released in response to the National Human Rights
Consultation. These include a broad-based community human rights education
program, as well as enhanced parliamentary scrutiny processes to assist the
consideration of the human rights implications of new laws and policies. These
measures will go a long way to building a human rights-respecting culture in
Australia.

However, I continue to believe that ultimately, the most effective way of to
ensure that our democratic institutions better respect and promote human rights
is for us to have the benefit of an over-arching legislative instrument such as
a national Human Rights Act. Such a law would, in the words of a commentator
from the United Kingdom, work to ‘protect individuals and minorities whose
views and aspirations are not necessarily represented by a system based on
majority rule’.^[8] For now the
government has decided not to take this path. We hope that this decision will be
reviewed in years to come.

5 Human rights are about everyone

I would now like to turn to a consideration of what belief in the
universality of human rights might mean in our daily lives. Human rights are not
only about the relationship between the individual and the state.

Belief in the importance of respect for human rights requires each of us to
evaluate our relationships with others – in our families, our workplaces,
our schools, the various communities to which we belong. In each of these
places, do I find respect for the inherent human dignity of every person? What
can I do in each of these spaces to promote respect for human dignity?

As Eleanor Roosevelt has famously said, human rights begin in ‘small
places, close to home’. She says that these places are:

so close and so small that they cannot be seen on any maps of the world. Yet
they are the world of the individual person; the neighborhood he lives in; the
school or college he attends; the factory, farm, or office where he works. Such
are the places where every man, woman, and child seeks equal justice, equal
opportunity, equal dignity without discrimination. Unless these rights have
meaning there, they have little meaning anywhere. Without concerted citizen
action to uphold them close to home, we shall look in vain for progress in the
larger world.^[9]

Inherent in Roosevelt’s words is the notion that rights and
responsibilities are inextricably interwoven. This idea is contained in all
important international human rights instruments. The Universal Declaration
proclaims that human beings ‘should act towards each other in a spirit of
brotherhood’ and that ‘[e]veryone has duties to the community in
which alone the free and full development of his personality is
possible’.^[10] The preambles
of both international covenants state that: ‘The individual, having duties
to other individuals and to the community to which he belongs, is under a
responsibility to strive for the promotion and observance of the rights
recognised in the present Covenant’.

The National Human Rights Consultation repeatedly heard from participants
that they did not want an ‘individualistic society where people are
self-centredly focused on their ‘rights’, without thinking of the
greater good and our ‘responsibilities’. I agree with the
Consultation Committee report conclusion that:

If we are to create a culture of human rights, regardless of the legal
enforcement mechanisms that might be instituted, education about
responsibilities is just as important as education about rights. It is
imperative that we provide better opportunities for citizens to answer the
question: ‘What should I do and what can I do to create a society in which
the just entitlements of all people are acknowledged, respected and
fulfilled?’^[11]

6 What can I do to ensure respect for human rights:
at home, at school, and at work?

So what can each of us do to create such a society? What can we do to protect
human rights in small places close to home?

Each of us is in a position to play a part in building a culture of respect
for human rights. This is fundamental to some of the Commission’s recent
work on the role of the ‘bystander’ in the protection and promotion
of human rights. This work originated in concern at the increasing frequency of
cyber-racism, and is now focussing on young people’s experience of
cyber-bullying more generally.

An alarming number of children and young people in Australia will experience
cyber-bullying. Australian studies conducted in 2006–7 suggest that
between 10–40% of school children experience online bullying depending on
the age of the young people involved. These figures are likely to have increased
due to greater access to technology, and the growth in social networking since
that time.

The question the Commission is currently asking is how can community members
be encouraged and supported to take constructive action in situations where they
see discrimination, violence, harassment or bullying taking place. We believe
that ‘bystanders’ have a critical role to play in making the world
around them a safer, more secure and more human rights-respecting community.

This approach has the potential for extremely wide application. While the
Commission will start with a focus on young people and cyber-bullying, all of us
are in a position to challenge behaviours that do not adequately respect human
rights – in our workplaces, in sporting clubs, community organisations, in
public spaces.

Our responsibility to contribute to creating a society where every person
enjoys their human rights requires us to ask what we can do in the small places
close to home. What can we do to reduce racism, to challenge discrimination
against people with disability, to challenge sexual harassment, to challenge
homophobia?

We all have the right to be treated fairly, but we also all have the power
and the responsibility to make sure that others are treated fairly too.

7 Conclusion

Individual responsibility to ensure that human rights are respected involves,
but also goes beyond, consideration of what we can do in our immediate
communities. It requires us also to acknowledge that all people in Australia are
entitled to enjoy basic human rights.

If we believe in the principle of equality and that the inherent dignity of
all people in Australia should be protected, we should consider what we can do
to ensure respect for the human rights of all people in Australia. What can we
do to build acceptance of the idea that we are all enhanced when the human
rights of the most vulnerable among us are adequately protected? It is the human
rights of those not at the centre of our political discourse that should be of
the greatest concern – those who may not be able to speak for themselves
such as children, the frail elderly, those with intellectual disability and also
those who are seen to constitute minority communities within Australia including
those who live in rural and remote Australia, Aboriginal and Torres Strait
Islander peoples, recent arrivals from Africa and Muslim Australians.

I believe that ensuring the adequate protection of the human rights of
everyone in Australia requires strengthening of Australia’s human rights
culture. In the absence of a national Human Rights Act, the human rights
education and enhanced scrutiny processes of the Human Rights Framework are
important first steps towards building an enhanced human rights culture in our
country.

There is also much that each of us can do within the various communities to
which we belong, to build a culture of human rights.

However, belief in the importance of protecting human rights should also
bring us to question whether our democratic system – to which the
importance of individual liberty and freedom is foundational – adequately
protects human rights. Our democratic right, and our democratic responsibility,
is to insist that our system of government robustly protects the rights of all
amongst us. Only if it does this will we be able to look to the future with
confidence that our increasingly diverse community will also be an inclusive,
cohesive and respectful community.

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^[1] The Universal Declaration of
Human Rights, 1948, Preamble.

^[2] David Kinley, ‘Human Rights Fundamentalisms’, (2007) 29 University of Sydney Law Review 545, p5.

^[3] H.C. 5100/94, Pub. Comm.
Against Torture in Isr. v. Gov’t of Israel, 53(4) P.D. 817,
845.

^[4] Luzius Wildhaber, former
President of the European Court of Human Rights, ‘Human Rights and
Democracy’, Paul Siegart Memorial Lecture 2001, London, 22 November
2001.

^[5] Migration Act 1958 (Cth), s 4AA.

^[6] Human Rights and
Equal Opportunity Commission, Chapter 3: The Northern Territory ‘Emergency
Response’ Intervention – A human rights analysis, Social Justice
Report 2007.

^[7] United Nations
Declaration on the Rights of Indigenous Peoples, General Assembly Resolution
61/295, September 2007.

^[8] Klug, F
and Wildbore, H, ‘Protecting rights: how do we stop rights and freedoms
becoming a political football?’, Unlock Democracy, 2009.

^[9] Eleanor Roosevelt, at the
presentation of ‘In Your Hands: A Guide for Community Action for the Tenth
Anniversary of the Universal Declaration of Human Rights’, United Nations,
New York 27 March 1958.

^[10] Universal Declaration of Human Rights, 1948, articles 1 and
29.

^[11] National Human Rights
Consultation report, p68.