Accessing Justice – The Australian Experience
Rights and Freedoms
20th International AIDS Conference, Melbourne
Introduction
Good afternoon. Thank you for your kind introduction.
I would also like to acknowledge the high calibre of speakers I have the privilege of sharing this platform with today. This has indeed been an enlightening session and provided much food for thought.
As an openly gay man myself, I welcome the opportunity to utilise my public position to advocate for the full realisation of human rights. In this capacity I am proud and privileged to take on the role of formal spokesperson for sexual orientation, gender identity and intersex or ‘SOGII’ human rights at the Commission.
The subject of my address today is Accessing Justice – the Australian Experience.
In addressing this subject I will partly respond to Richard Elliott's comments about why Australia does not have a wide array of case law addressing discrimination issues.
In the context of law this holds a certain meaning specific to the judicial system. Indeed there are some who are of the opinion that rights are meaningless without the means to seek redress for their breach.[1]
With important liberal human rights principles of freedom of speech, association, movement, religion and property rights sits the essential principle of equality before the law. Equality before the law provides the foundations for respecting universal and inalienable human rights. We should always repudiate the idea that there are different or special classes of persons who have more or less, or deserve more or less, human rights.
The very foundation of human rights is the basic idea that people own their own bodies and lives, and from there they have the freedom to pursue their opportunities and enterprise. Respecting this important foundation is at the heart of the dignity of the individual.
At this conference already you’ve heard of the horrific consequences of using law to victimise those with HIV/AIDS, rather than working with them and respecting their fundamental dignity.
But in approaching justice, I take a slightly broader interpretation than laws. Human rights and the justice afforded by them, extend beyond the courts and a dialogue between lawyers and governments.
Law plays an important role in our society. But it is not the end. The most effective enforcement mechanisms in advancing human rights is the internalisation of individual human rights principles in hearts and minds.
In the context of HIV related human rights in Australia it is impossible to talk to the success of accessing justice without at least briefly addressing the wider structural environment that has enabled it.
Today I will briefly touch on the Australian HIV response as the setting to the role a National Human Right’s Institution (or NHRI) such as The Australian Human Rights Commission (the Commission) can play in facilitating access to justice.
The Commission has played an important role in advancing systemic change in Australia, as well the Alternate Dispute Resolution (ADR) process at the Commission, which acts as a point of access to justice for individuals impacted by, at risk of or living with HIV.
Australia’s HIV Response
As many of you heard last night, Australia has long been held up as an innovative example of an effective response to HIV/AIDS.
By the end of 2010 an estimated 25 166 people were living with HIV infection. This corresponds to an overall prevalence of just under approximately 0.1 %.[2] In addition, since 1994 the number of cases of HIV that progress to AIDS has declined rapidly. There are in fact now very few people diagnosed with AIDS in Australia and it is no longer a notifiable disease.[3]
I am sure it is well known to many of you that the comparative success of the HIV response in Australia is actually the result of a multifaceted set of strategies spanning across public health, clinical service delivery, policy development, legislative reform, and the application of law, as well as effective activism, advocacy and lobbying.
In the words of the UNAIDS reference group:
Thirty years of experience in the HIV epidemic compel the conclusion that the human rights approach to HIV is the best way to achieve health, dignity and security in the context of this epidemic.[4]
Justice in the context of HIV related human rights in Australia has been accessed within the milieu of multiple approaches both inside and alongside the court system.
Civil Society
I am a strong advocate for the role of civil society in the realisation of human rights. My approach to human rights law holds the centrality of the empowered individual at its foundation.
This approach has been a hallmark of the Australian experience in HIV. For years, civil society, particularly people living with HIV, have led efforts against this injustice.[5] It would be remiss of me to speak today and not acknowledge this fearless contribution.
To this end I recall the profoundly powerful words of the Denver Principles, written in 1982 amidst of what is by contemporary Australian standards unimaginable death, fear and uncertainty:
We condemn attempts to label us as ‘victims’, a term which implies defeat, and we are only occasionally ‘patients’, a term which implies passivity, helplessness, and dependence upon the care of others. We are ‘People With AIDS’. ... We reserve the right to die – and to LIVE – in dignity.[6]
It is with a deep respect to this courage that I talk to the issue at hand today.
National Human Rights Institutions
Just over six months ago, the Australian Governor-General appointed me as Australia’s sixth Human Rights Commissioner to be based out of our NHRI. Like all NHRI’s, the Commission was established under relevant Federal legislation and is part of Australia’s commitment to protecting, fulfilling and respecting human rights domestically.
The role of NHRIs in promoting and protecting human rights includes providing advice to government in relation to law and policy, conducting public education and investigating and resolving complaints regarding alleged violations of rights. It can also include the power to conduct formal enquiries and intervene in court cases in which human rights are relevant.
Thus, the responsibility of an NHRI spans across individual issues, as raised through complaints and the courts, and systemic issues in policy, legislation and education.[7]
The Commission here in Australia is an A-status NHRI, and in line with these criteria enjoys a relatively high level of resourcing, independence and influence. This is not always the case for many of our equivalents across the globe.[8]
This disparity must be taken into serious account when considering the role NHRI’s can play in other jurisdictions impacted by HIV.
Many NHRI’s do not enjoy this privilege, and it is vital that as an international community we continue to apply pressure for appropriately resourcing and supporting NHRI’s to play effective role in the checks and balances system of universal human rights principles.
HIV and Sexual Orientation
Likewise it is dangerous to make global generalisations about the judiciary or even the many HIV epidemics that constitute the global pandemic we currently face.
As I am sure you all well know, in this region of the world alone, several different legal systems can be found. In each of them, the role of the judiciary will be different.[9] For each of these systems NHRI’s will play a unique function.
Similarly the generalised epidemics of sub-Saharan Africa and Eastern Europe are not comparable to that of the Australian experience. Therefore the areas of HIV related human rights law that is relevant to accessing justice might differ. For example women’s rights and issues such as gender-based violence will be of far greater importance to the accessing justice in regions with generalised HIV epidemics.
So when I speak of our story today it is with an acknowledgement that the specifics of this story, and indeed the enormous privilege in the Australian experience here must be taken into account when applying such strategies elsewhere.
The specific nature of the HIV epidemic in Australia means it is a health issue disproportionality impacting gay men.[10] Of all HIV diagnoses made between 2008 and 2012, 67% of transmissions occurred among men who have sex with men.[11] By 31 December 2012, men comprised 90% of the estimated 23,037 people with HIV in Australia.[12]
When considering HIV in this context, it is important to acknowledge that for the majority of both people living with HIV in Australia as well as those at risk of it, any experiences of discrimination or marginalization related to either an actual or perceived HIV status, often compounds what has historically represented an already significant set of human rights challenges.
Even with the extent of law reform here, people of diverse sexual orientations, sex and gender identities in Australia experience discrimination in a number of areas of public life and infringements of their human rights including high rates of violence, harassment and bullying.[13]
Accessing Justice and NHRI’s
So what of access to justice beyond this broad systemic change? How can an NHRI play an effective role in accessing justice for people affected by and living with HIV?
Alternative Dispute Resolution (ADR) is a key component of human rights and discrimination law in Australia. The law provides for complaints about discrimination and violations of human rights to be resolved by conciliation rather than through courts. ADR resolution remains a core part of the Commission’s functions. Whilst the Commission holds a role in monitoring and at times intervening in court cases that pertain to human rights, most of our work in facilitating access to justice for individuals in relation to HIV has occurred and continues to occur through our ADR process.[14]
In the case of HIV the primary piece of Federal Legislation through which ADR is accessed is the Disability Discrimination Act 1992 (Cth). Since the Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) 2013 (Cth) extended coverage to sexual orientation in July last year, we expect to see some HIV related complaints lodged that are linked to sexual orientation.
Whilst NHRIs generally do not have the authority to impose legally binding outcomes in relation to complaints, the enabling legislation provides for informal resolution of complaints through mediation or conciliation. Where attempted resolution is unsuccessful, complaints may proceed to tribunals or courts that can issue final and binding determinations.[15]
The United Nations has described NHRIs as ‘ADR mechanisms’ and referred positively to this role for NHRIs in providing a more accessible, quick and inexpensive means to resolve disputes in contrast with judicial determination.[16] This is relevant when considering the way in which experiences of the court system can further disadvantage already marginalised individuals impacted by HIV.
Further to this, research into the functions of ADR supports anecdotal evidence that the ADR processes of NHRIs can increase knowledge and awareness of rights and responsibilities under the law. The complaint resolution process can therefore be seen to complement the public education functions of such institutions that aim to increase knowledge of responsibilities under the law and encourage self-initiated compliance with the law.[17]
Importantly, the research supports anecdotal claims that even where complaints are raised by individuals and may be resolved on confidential terms, terms of resolution are not limited to self- interested bargains but in many cases include outcomes which are likely to have broader benefits for similarly situated individuals and groups covered by the law.[18]
The evidence from the Commission is that there is a very positive response from those that lodge complaints, as well as those that respond to complaints, because ADR provides a cheaper and swifter approach to resolution.
However, the consequence of using ADR ensures that cases remain confidential and do not necessarily enter the public domain. While that may be good for the individual parties, it can mean that resolutions therefore don't provide a public education benefit.
An inclusive culture
The other important role of a NHRI is to advance tolerance and understanding of those living with HIV, and specifically minority groups that are disproportionately exposed. Laws are designed by people. But so long as ill-will or harm, or negative cultural and social norms sit at the heart of those the write laws, or those who vote for them, those values and views can be codified in law.
NHRIs can significantly inform discussion in favour of reformist pluralism around the central idea of individual human rights, equality before the law and respect for the individual.
The Commission holds a proud history in SOGII human rights and has undertaken a number of public consultations and inquiries to canvas the experiences and views of people who have been discriminated against on the basis of their sexual orientation, gender identity or because they are intersex.[19] The results of this work have contributed to significant law reform in Australia spanning from decriminalization, relationship recognition to anti-discrimination protection.[20]
Each effort to advance tolerance and understanding flows through the design of policies, service delivery and laws that impact on people with HIV.
But NHRIs cannot do this alone. Individuals, civil society and business must be part of respecting the human rights of the individual. Without a basic respect for liberal human rights embodied in culture, efforts by NHRIs and their allies will never be fully realized.
Concluding remarks
While in Australia certain rights are well protected, other important rights are still undervalued and unprotected, especially in relation to minority groups like people living with HIV and the LGBTI community.
The Commission plays an important role in both directly and indirectly facilitating access to justice for people living with, and impacted by HIV.
It works effectively to both facilitate systemic change as well as access to justice for individuals primarily through the ADR process.
These functions effectively support more traditional approaches to accessing justice through the court system.
It is my belief this broader approach to accessing justice creates a higher degree of success in this pursuit, both within the judiciary and alongside it.
In finishing today I would like to paraphrase the honourable Justice Michael Kirby, a name I know many of you will be familiar with and who I am proud to call a fellow Australian:
The [HIV] epidemic is fundamentally about human beings, fellow citizens. It is not about statistics. It is not about law, as such.’ [21]
Former Justice Kirby is correct. The HIV epidemic is about people. Law governs people. But our relations to each other go beyond law. The extent that we respect each other is equally central to advancing human dignity.
Thank you.
[1] JUSTICE Law Firm. At: http://www.justice.org.uk/pages/access-to-justice.html (viewed 16 July 2014).
[2] UNAIDS, Australia Country Progress Report (2012). At:
http://www.unaids.org/en/dataanalysis/knowyourresponse/countryprogressreports/2012countries/ce_AU_Narrative_Report[1].pdf (viewed 16 July 2014).
[3] AFAO, HIV statistics in Australia (2014). At:
http://www.afao.org.au/about-hiv/the-hiv-epidemic/hiv-statistics-australia#.U8THHF7OMpF (viewed 16 July 2014).
[4] UNAIDS Reference Group on HIV and Human Rights, Stay the Rights Course: Statement to the 2011 United Nations High-Level Meeting on AIDS (11 April 2011). At:
http://www.hivhumanrights.org/statements/the-global-fund-and-the-crisis-of-hiv-funding/ (viewed 16 July 2014).
[5] E Bernard and S Cameron, Advancing HIV Justice: A progress report of achievements and challenges in global advocacy against HIV criminalisation, Global Network of People Living with HIV (GNP+) and the HIV Justice Network. At: http://www.hivjustice.net/advancing/#sthash.P9POV0jq.dpuf (viewed 16 July 2014).
[6] Statement from the Advisory Committee of the People with AIDS, Denver (1983). At: http://www.actupny.org/documents/Denver.html (viewed 16 July 2014).
[7] T Raymond, Alternative Dispute Resolution as a tool for social change: A human rights perspective (2014).
[8] Australian Human Rights Commission, About the Australian Human Rights Commission (2012). At https://www.humanrights.gov.au/publications/about-australian-human-rights-commission-2012 (viewed 16 July 2014).
[9] M Kirby, Courts and Justice in the Era of HIV/AIDS, Judicial workshops on HIV/AIDS and the Law, New Delhi, 18 December, 1999, Ahmedabad, 19 December, 999 Surat, 20 December 1999.
[10] 2013 Annual Surveillance Report of HIV, viral hepatitis, STIs, The Kirby Institution for Infection and Immunity in Society, UNSW Medicine (2013). At: http://www.kirby.unsw.edu.au/surveillance/2013-annual-surveillance-report-hiv-viral-hepatitis-stis (viewed 16 July 2014).
[11] HIV Statistics In Australia: Men, AFAO, (2014). At http://www.afao.org.au/about-hiv/the-hiv-epidemic/hiv-statistics-australia/hiv-statistics-men-in-australia#n1 (viewed 16 July 2014).
[12] 2013 Annual Surveillance Report of HIV, viral hepatitis, STIs, The Kirby Institute, UNSW, 2013. At http://kirby.unsw.edu.au/surveillance/2013-annual-surveillance-report-hiv-viral-hepatitis-stis (viewed 16 July 2014).
[13] T Wilson, SDA Amendments Speech for Australian Public Service Human Rights Network, (7 April 2014, Canberra). At https://www.humanrights.gov.au/news/speeches/sda-amendments (viewed 16 July 2014).
[14] T Raymond, Alternative Dispute Resolution as a tool for social change: A human rights perspective (2014).
[15] Ibid.
[16] Ibid.
[17] Ibid.
[18] Ibid.
[19] Australian Human Rights Commission, Addressing sexual orientation and sex and/or gender identity discrimination: Consultation report (2011). At http://www.humanrights.gov.au/publications/consultation-protection-discrimination-basis-sexual-orientation-and-sex-andor-gender (viewed 16 July 2014).
[20] T Wilson, SDA Amendments Speech for Australian Public Service Human Rights Network, (7 April 2014, Canberra). At https://www.humanrights.gov.au/news/speeches/sda-amendments (viewed 16 July 2014).
[21] M Kirby, Courts and Justice in the Era of HIV/AIDS, Judicial workshops on HIV/AIDS and the Law, New Delhi, 18 December, 1999, Ahmedabad, 19 December, 999 Surat, 20 December 1999.