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The empowered citizen: the importance of education and equality for a modern democracy (2011)

Commission – General

 

The empowered citizen: the importance of education and equality for a modern democracy

The Hon. Catherine Branson QC

City Hall, Newcastle

Tuesday, 30 August 2011

Acknowledgements

I would like to begin this evening by acknowledging the traditional owners of the land on which we meet, the Awabakal People. I pay my respects to their elders past and present.

It is an honour to have been invited to Newcastle to address you today. I would like to thank the Hunter Valley Research Foundation, and in particular, Dr Wej Paradice, CEO, for the invitation, and Maree Campbell for facilitating my visit.

Introduction

One of the privileges of being President of the Australian Human Rights Commission is being invited to visit communities all around Australia.

Last year I was invited to visit a remote Aboriginal town camp in the Northern Territory.  What I saw there is indelibly printed on my memory.  I saw overcrowded, dilapidated and dirty houses. In the houses I entered mattresses were pushed together in the centre of the ‘living room’ as the one area of the house far enough from the broken louvers to stay dry during rain.  I saw a running kitchen tap said to have been in that condition for over a year despite complaints to the landlord. In none of the houses was there a place suitable for a student to study or read in peace.  At least part of the explanation of the overcrowding was, I was told, the influx of people from more remote communities seeking to avoid the restrictions, principally the alcohol restrictions, of the NT Intervention.  Although the town camp was a prescribed area, alcohol restrictions are relatively easy to avoid if you are living close to a metropolitan area.

Although nearly everything that I saw in this community shocked me, I was particularly distressed by the idea that Australian children could be living in such circumstances of inequality.  The idea that the children of this community were growing up with comparable choices and opportunities to fulfil their potential as the children of other relatively nearby towns is fanciful.

More recently I was privileged to be invited to participate in the Garma Festival, hosted each year by the Yolngu people of north-east Arnhem Land. For the last two years this festival has been organised by the Yothu Yindi Foundation, a foundation established by community leaders and persons of authority from the five clan groups of that region. While at Garma I met inspiring Aboriginal men and women from all around Australia, including from north-east Arnhem Land, concerned to improve the health and wellbeing of Yolngu and other Aboriginal and Torres Strait Islanders. In contrast with those that I met at the remote town camp, these were impressive, educated and empowered citizens. Their empowerment was perhaps best illustrated by their hosting, during the course of the Festival, a visit by the President of Timor Leste during which he signed an economic cooperation agreement with the Yolgnu people. I was also impressed by the vibrant display during the Festival of the living Yolngu culture and, indeed, of the impressive contribution being made by Yolngu and other Aboriginal groups to modern Australian culture, principally through music.  Nonetheless I was saddened to hear from Aboriginal leaders of the frustration and disappointment about the ongoing disadvantages that their communities continue to face and of their concern about the impacts of the paternalistic approaches adopted by successive governments.  Plainly they do not believe that the voices of Indigenous Australians are being heard in Canberra.

I use these two stories to illustrate continuing inequalities experienced within our democracy.  Inequality is not, of course, a uniquely Aboriginal experience.  I could, and I will in a moment, speak of other stories of inequality in Australia.

My purpose this evening is to explore why equality matters in a democratic society such as Australia. Equality is both a fundamental human right and a founding principle of modern democracy. Research shows that it is also a force for social good.  However, our democratic institutions do not always protect us from inequality. To reduce inequality we need empowered citizens – citizens empowered with knowledge about their rights and the rights of others and empowered by possession of the skills necessary to engage in democratic processes to achieve real change.

Equality and non-discrimination are fundamental human rights

Let me start with some very brief comments about the human rights to equality and non-discrimination, in many ways the cornerstones of human rights. The importance of these rights is demonstrated by the fact that most, if not all, international human rights treaties protect the right to be free from discrimination.[1]

Rather than consider at length the articulation of these concepts in international human rights discourse, I would like to concentrate on their importance to democracy. In describing the meaning of the right to equality before the law, Nelson Mandela articulates the concept as follows:

In its proper meaning equality before the law means the right to participate in the making of the laws by which one is governed, a constitution which guarantees democratic rights to all sections of the population, the right to approach the court for protection or relief in the case of the violation of rights guaranteed in the constitution, and the right to take part in the administration of justice as judges, magistrates, attorneys-general, law advisers and similar positions.[2]

More emotively put, equality is the realisation of the dream of Martin Luther King that his four little children would one day live in a nation where they would not be judged by the colour of their skin but by the content of their character.[3]

As Martin Luther King so well understood, it is not only equality before the law in the strict sense to which we should aspire. Rather, we should aspire to an Australia in which all people have the capacity to participate fully in our democratic processes and in our society more broadly.

Human rights and the foundation of modern liberal democracy

It is important to recall that recognition and protection of certain civil rights, particularly the right to equality, was a critical feature of the development of modern liberal democracy. This is evident in the theories about the relationship between the individual and the State developed by intellectuals like Hobbes and Locke. They wrote that all human beings are 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.

Democracy and equality

We continue to vest an enormous power in our elected representatives and to trust that they will exercise this power justly and broadly in accordance with their electoral mandate. The expression of majority will through regular elections is a critical element of democracy. However, democracy is not just about the prevailing of the will of the majority. Majoritarianism is not the same as democracy.

A majority view is not always aware of, let alone sympathetic to, the need to treat fairly and justly those whose voices do not form a significant part of mainstream political discourse. Those I am speaking of include Indigenous peoples, but also those who live outside our major cities, recently arrived immigrant communities and asylum seekers, children, the homeless, many people with disability and those with lasting mental ill-health and their carers.

If our view of humanity is that each of us has minimum non-negotiable entitlements, then we need checks and balances on the majority will to realise a society that is fair and just as well as democratic. We need to strive for the realisation of the right to equality.

The impact of inequality

We know that marked inequality is ‘socially corrosive’.[4] This is the conclusion of British researchers who have found that, when compared with countries that enjoy relative financial equality, countries where there is significant financial inequality experience:

  • mental illness that can be three times more common

  • obesity rates that can be twice as high

  • rates of imprisonment that can be eight times higher, and

  • teenage births that can be ten times higher.[5]

Importantly this research shows that it is wealth disparity rather than the actual level of GDP that is critical; that is, equality within a country with a modest GDP results in better social outcomes than those achieved by countries with a higher GDP but greater inequality.

The United Kingdom’s Equalities Review Panel argues that the links between equality and social cohesion are well documented. They said that:

Violence, conflict, insecurity and political instability are all more likely to occur in more unequal societies. In the poorest areas of unequal societies, the quality of social relations and the social fabric are stretched to breaking point.[6]

In Australia, discrimination has been found to contribute to reduced physical health, poor mental health, and to ‘be a factor in the disproportionate rates of unemployment, early school leaving, poor educational outcomes and involvement in the criminal justice system amongst those from particular cultural groups’.[7]

I think we are all generally aware of the inequalities that persist in our society. However it is confronting to reflect for a moment on some alarming statistics, and to consider how they might affect political participation of the affected groups. For example:

  • The life expectancy of Indigenous people in Australian is estimated to be between 10 and 17 years lower than the rest of the community[8] and the mortality rate of Indigenous infants is twice that of non-Indigenous infants.[9]

  • 2.2 million people in Australia are thought to be living in poverty. Seventy-five per cent of these people live in a household where no-one has paid work. Twelve per cent of children in Australia live in poverty.[10]

  • Our prisons are populated by a disproportionate number of Aboriginal and Torres Strait Islander people,[11] people with a mental illness[12] and people who have experienced homelessness.[13]

  • People with a disability continue to experience higher levels of unemployment than other people in Australia.[14]

  • People in remote and rural areas continue to experience reduced access to health care services, leading to significantly poorer health care outcomes than their urban counterparts.[15]

People in these situations do not only experience the daily impact of inequality. In many cases they also lack the political power that is critical to influencing policy development a democratic society. The impacts of inequality can reduce their capacity to engage in and influence democratic processes.

I propose now briefly to explore issues of inequality as they affect two groups in the Australian community - people with a disability and Aboriginal and Torres Strait Islander peoples. I have chosen these examples because in each instance there is on the horizon the opportunity for change.

Australians with a disability

People with a disability face particular challenges in exercising their rights to full participation in our society. Amongst these challenges are those associated with finding employment, accessing appropriate services, and accessing public spaces and buildings.

Earlier this year we celebrated the commencement of the Access to premises standards. The release of these standards was the culmination of many years of hard work. These standards, which have been incorporated into the Building Code of Australia, provide clarity and certainty to both the building industry and people with a disability about the accessibility of public buildings.

This will lead to real change. The Standards govern simple practical matters such as requiring entrances to be wide enough to accommodate a wheelchair. More accessible buildings will assist in achieving greater participation for people with disability in employment, education, access to services, and other areas of our economic, social and cultural life.

Our Disability Discrimination Commissioner, Mr Graeme Innes, has explained:

The reality of exclusion from our buildings and the services that operate from them is not just a matter of inconvenience. It affects every part of our lives. It can limit our opportunities for work and play and developing relationships and skills. It exerts control over our spontaneity. It can make a simple outing to a restaurant or cinema a major operation. It can, and often does, leave you with a feeling that only some people are valued and only some people can make a contribution to our community.[16]

Recently we have seen another extremely important development in the area of disability with the Australian Government committing to the initial stages of a National Disability Insurance Scheme. Such a scheme will ensure that a far greater number of people with disability can access the services that they need to more fully participate in society. And this scheme could play a role in removing some of the barriers to participation faced by people with a disability – because doing so will reduce the costs of supporting them in the community.

Aboriginal and Torres Strait Islander people in Australia

I have already mentioned inequalities experienced by many Aboriginal and Torres Strait Islander people.  They have experienced significant and systemic disadvantage in their own country over two centuries.

This year a process has commenced that could lead to the recognition of Aboriginal and Torres Strait Islander peoples in the foundational document of our democracy: our Constitution. Our Constitution does not presently acknowledge Australia’s first peoples or recognise their past, present and future importance to our society. It also contains a power for the Commonwealth Parliament to make special laws it deems necessary for the people of any race – a power that has been interpreted to allow adverse discrimination on the ground of race including against Indigenous Australians.

Although we have a Race Discrimination Act in Australia which proscribes discrimination on the ground of race, Parliament can override this proscription. This is what happened when the Northern Territory Emergency Response laws were passed, after, I interpolate, a scandalously short debate in a legislature in which no Aboriginal or Torres Strait Islander sat.

It is timely that we think about constitutional recognition of Aboriginal and Torres Strait Islander people as the first people of this country. As Mick Gooda, the Aboriginal and Torres Strait Islander Social Justice Commissioner has observed, this process is significant for us all.  He said:

I think it is important that all Australian’s are aware that constitutional reform is not just about Aboriginal and Torres Strait Islander people. It is about the entire nation. It's not about looking back. It's about looking forward and moving forward as one, united nation. Referenda provide an opportunity for the people of Australia to speak. This will be a great and rare opportunity, to reframe and reset our relationship as a nation. That is why it is so important that we all get involved in the dialogue about Constitutional recognition as an opportunity to reconcile and grow as a nation together.[17]

We can all be involved in this potential transformation. Each of us is invited to participate in the process led by an Expert Panel established by the Prime Minister. We can do this in a number of ways – by attending a consultation meeting, by writing a letter or email or by lodging a written submission. Eventually we might all participate in voting if any proposals for constitutional change are put to a referendum. I do not see this as exercise as one of mere symbolism. My hope is that this exercise in democracy will lead to greater inclusion, enhanced respect and ultimately greater equality for Aboriginal and Torres Strait Islander people in Australia.

Human rights education

I would like to close this evening with a few words about the importance of education, including education about human rights. I share the concerns of Professor Martha Nussbaum that by focusing too heavily on national economic growth, we risk treating education as though its primary goal were to teach students to be economically productive rather than to think critically and become knowledgeable and empathetic citizens. She has expressed the fear that the loss of basic capacities such as the ability to criticize authority and to sympathize with the marginalized and the different jeopardizes the health of democracies and the hope of a decent world.[18]

Human rights education, as I see it, is about building a culture of respect for human rights. It is not only about providing knowledge about human rights and the mechanisms that protect them, but also about imparting the skills needed to promote, defend and apply human rights in daily life.  Time constraints this evening mean that a more precise examination of the elements of human rights education may need to await another day.

Conclusion

Empowered citizens are what make a democracy work. Empowered citizens recognise the power that elected representatives exercise in their name. They realise that these representatives have a responsibility to consider how law and policy impacts upon all people in Australia, but particularly on the most vulnerable amongst us. They understand the critical importance of democratic participation.

The constitutional reform process that I have referred to is an upcoming opportunity for democratic participation by all Australian citizens. With sufficient support it could contribute to the realisation of greater equality for Aboriginal and Torres Strait Islander people in Australia.

The Access to premises standards and the commencement of work on a National Disability Insurance Scheme to which I have also referred are also important examples of how democratic participation has worked or can work to achieve greater equality for those many people in Australia who have, or may come to have, a disability.

The achievement of greater equality only comes through the action of empowered citizens – that is, educated citizens who know about their rights and the rights of others and who are prepared to take steps, big and small, towards the realisation of a more just and fair Australia; to a more democratic Australia.

[1] The United Nations Office of the High Commissioner for Human Rights has explained: ‘Non-discrimination provisions are contained in the United Nations Charter of 1945 (arts. 1 and 55), the Universal Declaration of Human Rights of 1948 (art. 2) and the International Covenants on Civil and Political Rights and on Economic, Social and Cultural Rights of 1966 (art. 2). Such provisions also appear in a number of specialized international instruments, including: ILO Convention concerning Discrimination in Respect of Employment and Occupation No. 111 of 1958 (art. 1); International Convention on the Elimination of All Forms of Racial Discrimination of 1965 (art. 1); UNESCO Convention against Discrimination in Education of 1960 (art. 1); UNESCO Declaration on Race and Racial Prejudice of 1978 (arts. 1, 2 and 3); Declaration on the Elimination of All Forms of Intolerance and of Discrimination based on Religion or Belief of 1981 (art. 2); and the Convention on the Rights of the Child of 1989 (art. 2).’ See United Nations Office of the High Commissioner for Human Rights, Fact Sheet No.18 (Rev.1), Minority Rights http://www.ohchr.org/EN/PUBLICATIONSRESOURCES/Pages/FactSheets.aspx (viewed 25 August 2011).

[2] United Nations Nelson Mandela International Day for freedom, justice and democracy http://www.un.org/en/events/mandeladay/inhiswords.shtml (viewed 8 August 2011).

[3] Martin Luther King, Jr. I Have a Dream (Speech delivered at the Lincoln Memorial, Washington D.C., 28 August 1963).

[4] Richard Wilkinson and Kate Pickett ‘Inequality: The Enemy Between Us? Why Inequality Matters’ Kosmos Volume IX, Number 1 (2010).
[5] Richard Wilkinson and Kate Pickett ‘Inequality: The Enemy Between Us? Why Inequality Matters’ Kosmos Volume IX, Number 1 (2010).

[6] Equalities Review Panel (UK) Fairness and Freedom: The Final Report of the Equalities Review (February 2007)
http://www.communities.gov.uk/publications/corporate/fairnessfreedom, p 19. as quoted in Human Rights Law Centre Advance Australia Fair: Addressing Systemic Discrimination and Promoting Equality(‘Advance Australia Fair’) (May 2011) http://www.hrlc.org.au/content/addressing-systemic-discrimination-and-promoting-equality-submission-re-governments-consolidation-of-federal-anti-discrimination-laws-11-may-2011/ (viewed 25 August 2011) p 3.
[7] Advance Australia Fair, p 6.
[8] Close the Gap Campaign Steering Committee Shadow report on Australian governments’ progress towards closing the gap in life expectancy between Indigenous and non-Indigenous Australians (‘Close the Gap Shadow Report’) (February 2011) see footnote 35, p 34.
[9] Citing the Australian Bureau of Statistics, Close the Gap Shadow Report, p 15.
[10] ACOSS, Indicators of inequality Factsheet (April 2011) http://acoss.org.au/publications/factsheets/ (viewed 25 August 2011).
[11] See, for example, Australian Institute of Criminology Indigenous imprisonment rates(July 2009) http://www.aic.gov.au/publications/current%20series/cfi/181-200/cfi195.aspx (viewed 25 August 2011).
[12] See, for example, James RP Ogloff, Michael R Davis, George Rivers and Stuart Ross (Australian Institute of Criminology) ‘The identification of mental disorders in the criminal justice system’ in Trends and Issues in Crime and Criminal Justice (March 2007) http://www.aic.gov.au/publications/current%20series/tandi/321-340/tandi334.aspx (viewed 25 August 2011).
[13] See, for example, Commonwealth of Australia (Department of Families, Housing, Community Services) Ex-Prisoners, SAAP, Housing and Homelessness in Australia (May 2004) http://www.fahcsia.gov.au/sa/housing/pubs/homelessness/saap_er_publications/exprisoners/Documents/sec_4.htm (viewed 25 August 2011).
[14] See, for example, Australian Human Rights Commission National Inquiry into Employment and Disability - Issues Paper 1: Employment and Disability – The Statistics (March 2005) http://www.hreoc.gov.au/disability_rights/employment_inquiry/papers/issues1.htm (viewed 25 August 2011).
[15] See, for example, Australian Institute of Health and Welfare Impact of rurality on health status http://www.aihw.gov.au/rural-health-impact-of-rurality/ (viewed 25 August 2011).

[16] Graeme Innes ‘Celebration of the commencement of the Premises Standards’ (Sydney, 2 May 2011) http://www.humanrights.gov.au/disability_rights/speeches/2011/premises.html (viewed 24 August 2011).

[17] Mick Gooda, Constitutional Reform: Creating a Nation for all of us(Brisbane, 23 February 2011) http://www.humanrights.gov.au/about/media/speeches/social_justice/2011/20110223_eidos.html (viewed 24 August 2011).

[18] Martha Nussbaum Education for Democratic Citizenship (Speech delivered on the occasion of the awarding of the degree of Doctor Honoris Causa at the Institute of Social Studies, The Hague,
The Netherlands, 9 March, 2006) http://iss.nl/News/Past-Events/9-March-2006.-Lecture-by-Martha-Nussbaum-Education-for-Democratic-Citizenship (viewed 29 August 2011).