Addressing human rights concerns and fostering greater understanding and protection of human rights in Australia

Addressing human rights concerns and fostering greater
understanding and protection of human rights in Australia

Keynote opening address at the

Human Rights Law
and Policy Conference 2008:

Shaping the National Stage for a New Era
of Rights

16 June, 2008

Melbourne

Graeme Innes AM,

Human Rights Commissioner

Human
Rights and Equal Opportunity Commission

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Introduction

I begin by acknowledging the traditional owners of the land we’re
meeting on today, the Wurundjeri people of the Kulin Nations.

I also thank the conference organisers for inviting me to speak, and our
chair, Linda Rubinstein for her warm welcome.

It's great to be here today. I can't think of a better time to be taking
stock of developments in human rights law and policy in Australia, or a better
place to be doing this than Victoria. As a Sydney-sider I have to admit I
haven't always been fully appreciative of the number plates down here, which
proclaim: ‘Victoria: The Place to Be!’ But there's no doubt that
Victoria is the place to be right now, when it comes to human rights
developments.

Regardless of where in Australia you are though, it's certainly an exciting
time to be working on human rights issues. It's a time of change, and a time of
real opportunity to take part in shaping a new era for human rights in this
country.

And you're in for a real treat over the next two days. You'll be hearing
from some extremely knowledgeable experts about many of the human rights issues
that have been critical over the past decade and longer in Australia -
counter-terrorism laws, immigration detention, and Indigenous rights to name
just a few.

Many of the speakers you'll be hearing from will talk about topics in much
greater detail than I intend to do this morning. What I will do is take a
broader look at the state of human rights protection in Australia.

I'll tell you about some of my experiences as Human Rights Commissioner which
highlight the need for more effective human rights protection.

I'll talk briefly about how greater human rights protection could be achieved
through a federal charter of rights.

Finally, and perhaps most importantly, I'll focus on how we're going to reach
a new rights era in Australia. Because ultimately, we won't be able to achieve
comprehensive legal protection for human rights unless we put a much greater
focus on increasing public awareness and understanding.

On the cusp of a new era of human rights

So - where are we at now in Australia? Are we at the dawn of a new rights
era?

Many of you would agree that we seem to be in the midst of a time of
significant change.

Over the past few years, we've seen exciting developments at the state and
territory level. We've had human rights charters adopted in the ACT and
Victoria, and successful consultation processes held in Tasmania and Western
Australia.

And, over the past six or seven months, we've seen the beginnings of a real
sea-change at the federal level.

It's fair to say that, for quite a few years in Australia, there haven't been
many causes for celebration amongst human rights advocates. But it's been
encouraging to see a range of positive developments come out of Canberra
recently:

• The apology to the stolen generations.
• A commitment to renewed engagement with the United Nations system.
• Support for the Declaration on the Rights of Indigenous Peoples.
• A commitment to ratify the optional protocol to the Convention against
  Torture.
• Consultations underway on ratifying the optional protocol to CEDAW.
• Just this morning, consideration by the Treaties Committee of ratification
  of the Disability Convention.
• Closure of the detention centres on Nauru and Manus Island.
• And an election promise by the Rudd government to run a national
  consultation on the protection of human rights in Australia.
  

These are all very welcome developments, and they do suggest that
perhaps the human rights tide is finally starting to turn.

But that doesn't mean it's all smooth sailing. Yes, there have been positive
developments. But there are still fundamental flaws in Australia's legal and
political systems when it comes to protecting human rights.

Weaknesses in Australia's system of human rights protection

I could give you countless examples which demonstrate these gaps and
weaknesses. But most of you would already know about them. Instead, I'll tell
you just a few short stories that convey the need for change.

First, as many of you would know, in 2006 the Commission inquired into the
discrimination faced by same-sex couples and their kids because of federal laws
that deny them equal entitlements. These fall across a wide range of financial
and work-related areas including superannuation, tax, parental and carer's
leave, and aged care.

During the inquiry, we heard from hundreds of Australians about the everyday
impacts these discriminatory laws have on their lives, their relationships, and
their financial security. One man told us:

“I loved a man called John. He was an Australian veteran. We were in
a relationship for over 20 years. John died of war-related injuries in 2004. I
applied for a war widow's pension and had I been in a heterosexual relationship
with John, I would have been eligible. Because I was in a same-sex
relationship, the pension was refused... I was recognised as John's carer in
the last stages of his life. I received a carer's pension and because of my care
for John, he did not need to be admitted to any veterans' hospice or medical
facility. I took good care of him. Now that John has gone, of course, I no
longer receive that pension. But without the financial support of the war
widow's pension that I should be entitled to because of my long-term
relationship with John, I am struggling financially."

Many of the people we heard from were frustrated and distressed about being
denied the same legal rights as their heterosexual friends and colleagues.
Another person told us:

"We are an average suburban family. We are working hard and contributing to
our community. We don't want special treatment - just what others can expect
from their legal and social community. Our rights are denied simply because of
who we love. We just want equality."

Now, a different example. A few years ago, my predecessor, Dr Sev Ozdowski,
inquired into children in immigration detention. You'll be hearing from Sev
tomorrow, so I won't detail the inquiry. However, it revealed very disturbing
evidence about the impacts of Australia's mandatory detention policy.

One boy was so affected and distressed by detention at Woomera, that in the
space of four months, he tried to hang himself four times, climbed into the
razor wire four times, slashed his arms twice, and went on hunger strike twice.
He was fourteen years old.

Important changes since then mean that children aren't held in detention
centres anymore. But they are still held in alternative forms of detention, and
Australia's mandatory detention policy still stands.

In my annual visits to detention centres, I've been shocked by the obvious
mental illness, and absolute loss of hope, amongst long-term detainees.

Finally, let me talk about something close to my heart - the right to vote.
If I said to you that there were 300,000 Australians who did not get a secret
ballot in Commonwealth elections you would tell me - as my ten-year-old daughter
is wont to do - that I did not know what I was talking about. But you have one
of them standing in front of you - I have only once had an independent secret
ballot. Every other time someone has filled in the ballot paper for me -
hopefully in the way I directed.

Until five or ten years ago this was an inevitable - if unfortunate -
consequence of my disability, and the fact that those who count the votes were
too lazy to learn Braille. But now there is technology available, so my right to
vote - a fundamental human right - is only prevented by politicians, who have to
change the law to make this happen.

Before the last federal election, the
laws were changed so that a trial of electronically-assisted voting could take
place. But it was only a trial. So next election I, and 300,000 other
Australians, will lose this right if the law is not changed.

These are just three examples. I mention them for two main reasons. Because
they put a human face to rights issues too often discussed only in the abstract.
And because they illustrate some areas where greater human rights protection is
sorely needed. There are many more.

Fostering greater protection of human rights in Australia

So, if stronger protection is needed, what should it look like?

If we're serious about a new era of human rights in Australia, we need a
system of protection which addresses a broader range of human rights, in a much
more comprehensive way than our current piecemeal system.

The Human Rights Commission believes the best way to achieve that is through
adopting a federal charter of rights.

A federal charter is Susan Ryan's topic tomorrow morning. I'll leave detail
to her. But it is important to recognise that many of the worst violations of
human rights in Australia could have been prevented - or at least minimised - if
there had been a clear legal statement of the basic rights the government and
public bodies had to promote and respect.

Under a federal charter, the essential aim would be to stop human rights from
being breached in the first place, by making sure that Parliament takes relevant
rights into account before passing laws. And by making sure the government and
public authorities consider human rights as they design and implement
policies.

Over the long term, what we need is a governing culture where this is the
accepted norm, not the exception to the rule.

The point of a federal charter would not be - as some would have you believe
- to transfer power to "unelected" judges, or to undermine the sovereignty of
Parliament.

The point would simply be to cement in Australian law the basic standards of
dignity, equality and fairness that the government has already agreed to uphold
through ratifying the major human rights treaties.

The charters adopted in the ACT and Victoria give us useful examples that
could be built on at the federal level.

How might this lead to greater protection of human rights in Australia? This
would depend on the exact form and content of the charter adopted. But, take for
example, the issue of immigration detention.

Imagine for a moment that Australia does not have a mandatory detention
policy, and has never had one. Now imagine that we have a statutory federal
charter of rights in place. The charter protects, among other things, the right
to be free from arbitrary detention, the rights of the child, and the right of
all detained persons to be treated with humanity and dignity.

Now, if the government was to consider adopting a mandatory detention policy,
they would have to consider the effect of that policy on the rights included in
the charter.

Arguably, if that consideration occurred honestly, it would have to conclude
that a blanket mandatory detention policy would not be consistent with the
rights in the charter.

The government would have two options. First, reconsider the legislation.
Perhaps they would abandon the policy completely. Or perhaps they would amend
it, to define an upper time limit beyond which the person could not be detained,
so that the detention did not become arbitrary.

Their second option would be to press ahead with the legislation as
originally drafted. But to do so, the government would have to publicly
acknowledge that they knew that the law would infringe human rights under the
charter, and publicly explain the nature and extent of that infringement. A
government which decided to go ahead, and adopt the mandatory detention policy,
would run the gauntlet of public opinion.

That's just one brief example. And, as I said, the extent to which a charter
will be able to protect human rights will depend on the exact content of the
charter. But this example highlights some of the potential of a federal charter,
and that's a potential we need to fully explore.

Fostering greater understanding of human rights in Australia

So, if we know we need stronger human rights protection in Australia, and we
think a federal charter is a good way to go about it, where do we go from here?
How are we going to make sure we reach this new era of rights?

We do have timing on our side. There's a positive momentum in Australia at
present, of which we should take advantage. We should make a concerted push for
greater human rights protection. And what time could be better than 2008 to make
that push, as we celebrate the 60th anniversary of the Universal Declaration of
Human Rights?

But if we're going to succeed in reaching this new era, and gain a federal
charter, people like you will need to be the agents of change. And not just at
an expert legislative or policy level, but at a human level. Because, as I said
earlier, we won't be able to achieve real change in Australia, unless we put a
much greater focus on increasing public awareness and understanding of human
rights.

Put simply, many Australians don't know or care much about human rights. I
don't mean that in a derogatory way. It’s simply that most Australians are
more concerned with their daily lives, and don't really come into contact with
human rights law, policy or language. Many Australians have probably never heard
of the Universal Declaration. And many Australians think we already have a bill
of rights.

This is a big challenge we need to overcome. Firstly, because building broad
public support will be crucial to getting a federal charter in place. But
perhaps more importantly, because the true value of human rights can't be
realised if most people don't really understand what they are, and why they are
so important to protect.

The government’s promised national consultation process will be a great
opportunity to raise the collective awareness of this country. To give
Australians a chance to learn a bit more about human rights, and to tell each
other and the government about what rights they think are important and should
be protected. But this opportunity has to be seized by all of us to be
successful.

So this is my challenge for you. Don't sit on the sidelines. Be an active
player in shaping this new era of rights. Spread the word. Reach out beyond the
usual suspects you might expect to take part in a consultation like this. We
need to include as broad and diverse a range of voices as possible. Talk to your
friends, your neighbours, your colleagues and your community about human rights.
And when you do that, try not to sound like a lawyer!

I mean that in the nicest possible way, of course. It's just that many of us
are so used to talking about human rights in legal or bureaucratic speak, that
sometimes we find it hard to talk about them in a way that really means
something to Australians.

And on that note, I want to ask each of you this question: Why are you here?

It's a genuine question. Why are you giving up two days of your week to do
this? Why do you care about human rights? What makes them meaningful and
valuable? And most importantly, why should the average Australian care about
them?

It’s important to be able to answer those questions in a way that makes
sense to the average person on the street. In a way that conveys how human
rights are relevant to them on a personal level.

Many Australians may not know a lot about human rights standards, and might
not care very much about the technical issues surrounding a federal charter. But
they do care about being treated with dignity and respect. They value their
freedom. And they expect to be treated with equality.

Most Australians wholeheartedly support those values - even though they may
not identify them as being fundamental human rights. Our challenge is to make
that connection for them.

In the words of Eleanor Roosevelt, "Where, after all, do human rights begin?
In small places, close to home - so close, and so small, that they cannot be
seen on any map of the world. Yet they are the world of the individual person:
the neighbourhood 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 or
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."

It is critical that the national consultation process reaches as many of
those small, close to home places as possible. That it permeates the world of as
many Australians as it can.

On that note, I'm pleased that you will hear from
Get Up tomorrow, about the role of the community in achieving human rights
outcomes. Get Up has done a great job of engaging with, and inspiring,
Australians to take action on a range of social issues.

So, to use their name, I encourage you all to get up, and get involved in the
national consultation process. Get energised. Get others inspired and engaged.
Hold a neighbourhood forum. Start a student action group at your uni. Get
signatures on a petition. Get your law firm to dedicate some pro bono time to
working on the legal issues. Write an op ed. Make a submission.

There are countless ways for you and others to participate. No doubt Get Up
will give you some inspiring ideas. And the consultations in Victoria, the ACT,
Tasmania and WA have already given us some ideas of ways to make it really easy
for people to get involved. Postcard campaigns, for example.

There is a level of public interest and support. We must energise and harness
that towards achieving legal change.

Conclusion

We've reached a crucial time in Australia. We know serious human rights
abuses still take place here every day. We know we need a stronger, more
comprehensive system to protect human rights. That can happen through the
adoption of a federal charter.

We have a real opportunity to achieve that goal, and usher in a new era of
rights in this country. We must take full advantage of that opportunity. We must
engage with Australians about why this matters.

So, during the next two days, I encourage you to think about how you
personally can play a role in shaping the new rights era, where we have human
rights for everyone, everywhere, every day.

Thanks for the chance to open your conference.