Asylum Seekers, Marriage Equality and Racial Vilification: What role for the AHRC?

Speech delivered to the Anglo-Australasian Lawyers Society

Professor Gillian Triggs, 
President, Australian Human Rights Commission

Wednesday, 17 October 2012

I am delighted to have been invited to speak to the Anglo-Australian Lawyers Society today for I have long been grateful for your warm welcome to Sydney after some 4 years working in London. The contacts that this society fosters with our British colleagues provide an important means of sharing our understanding of the law.

When I was first invited to speak, it was as Dean of the Sydney Law School and I intended to talk about the globalization of the law and its impact on legal education. Life however took an unexpected turn.  As I find my feet at the Australian Human Rights Commission I thought I might pose the very questions for you that I am asking myself:

• What is the role of the Commission in the implementation of human rights in Australia?
• How can the Commission bridge the gulf between Australia’s international legal obligations and the partial implementation of these obligations in national law?
• How can the Commission meet its statutory o;bligations to inform public debate about human rights without being compromised by political partisan debate?

I have just returned from a visit last week to Christmas Island to visit four of the detention camps there, followed by several hours of questioning yesterday by the Senate Estimates Committee. Both were challenges experiences, but the contrast between the despairing condition of asylum seekers and the cold appraisal of the Commission’s budget from members of senate could not have been more stark.

We might begin by considering a few facts about the Commission. It is Australia’s independent and internationally “A” rated national human rights institution that employs over 130 staff, many of them lawyers. The Commission is charged with promoting and protecting human rights and conciliating of complaints predominantly in the area of disability and sex discrimination. The Commission is responsible for administering several pieces of legislation:

• Australian Human Rights Commission Act 1986
• Racial Discrimination Act 1975:  Commissioner Dr Helen Szoke
• Sex Discrimination Act 1984:  Commissioner Elizabeth Broderick
• Disability Discrimination Act 1992:  Commissioner Graeme Innes
• Age Discrimination Act 2004:  Commissioner Susan Ryan
• Children’s Commissioner to be appointed by the Attorney-General

Our functions are many and varied and include:

• Inquiring into and conciliating certain human rights complaints Annually we receive over 17,000 informal and 2,600 formal complaints, of which 48% are successfully conciliated. This function comprises one third of our activities.
• Examining current legislation and Bills to ascertain whether they are consistent with human rights
• Conduct inquiries, such as the recent inquiry into the detention of Indonesian children, where their age was determined in part by discredited wrist X rays. Also notable this year has been the inquiry into alleged sex discrimination in the Australian Armed forces.
• Conducting research and education, a recent example being the campaigns for employment rights of the aged, cyber bullying and the By-Stander project to encourage reporting of bullying.
• Intervening in human rights matters before the courts, such as the proposed Malaysian offshore processing of asylum seekers, the ASIO security assessments or parental surrogacy cases. The Commission can also be an amicus curiae, friend of the court.

The lodestar for our activities is international human rights, defined as:

“the rights and freedoms recognized by the ICCPR, ( and as it applies to Australia) the declaration (Rights of Child, Mentally Retarded Persons and Disabled Persons) and recognized and declared by any relevant international instrument, including declarations by an international organization”. 

A relevant international instrument means one in respect of which the minister has made a declaration and currently includes the Convention on the Rights of Persons with Disabilities, the Declaration on Religion, and   the Convention on the Rights of the Child. The International Covenant on Economic, Social and Cultural Rights has not been declared and thus the emphasis of the Commission’s work lies with political and civil rights.

With this background I would like to raise three points; the disconnect between international human rights and Australian law with respect to asylum seekers, the risks posed by Commission engagement in the political process in respect to racial vilification; and the role in the Commission in setting out international legal principles that are evolving in respect of marriage equality

1. Relationship between International law and Australian law

Lord Bingham described the relationship between international law and domestic law in the European Roma Rights Center Case 2005, (quoted by Justice Gummow in the ASIO M47 case.) Lord Bingham observed that:

The tension in domestic statute law which governs the administration of immigration control between, on the one hand, the powers of the sovereign state to admit, exclude, and repel aliens, and, on the other hand, the humane practice, reflected in treaty obligations, to admit aliens, or some of them, seeking refuge from persecution elsewhere.

This states a paradox that, while not unique to Australian law, is a special feature of it. Australia has long exercised a strong engagement in the negotiation and drafting of the major human rights treaties. This has been true since the heady days of Doc. H V Evatt, Minister for Foreign Affairs at the UN and his Presidency of the General Assembly when the Universal Declaration of Human Rights was adopted on 10 December 1948 - to the drafting of the Rome Statute for the International Criminal Court. Despite it’s active role, Australia has, with some exceptions, chosen not to implement human rights treaty obligations directly in Australian law and we do not, of course, have a national charter of rights.

While we are parties to the ICCPR and ICESC, which articulate most international human rights, only the ICCPR is scheduled to the AHRC Act. This along with the Declarations and declared Conventions provide the benchmarks for the rights the Commission is charged with protecting. These annexed and declared treaties and Declarations do not provide a cause of action in the courts. They are not a sword for wielding by citizens in the courts, but a benchmark for conciliation, education and advocacy.

Asylum Seekers

The gulf between international human rights law and Australian law is illustrated in the current debate about asylum seekers.

International law creates an obligation on state parties to assess whether an asylum seeker is entitled to refugee status.  The right to claim, but not necessary gain, refugee status is a long recognized principle that was first articulated in the Universal Declaration on Human Rights in 1948.I f the applicant is found to be a refugee, various obligations arise for the state under the Refugees Convention of 1951 to give effect to rights such as non-refoulement and non-discrimination on the grounds of race, religion, or country of origin, and freedom of religion and movement. All these rights are subject to a “national security” exception in respect of a particular person.

International law, as described by UNHCR, also requires that determination is speedy and subject to review by an impartial tribunal, and that detention be the least restrictive in all the individual circumstances. The ICCPR is relevant here, as Article 9 prohibits detention that is arbitrary and CROC requires that the rights of the child are a primary consideration.

By contrast with the responsibilities under international law, Australian law gives only limited legislative effect to its human rights obligations in the Migration Act. For example, illegal non-citizens and unauthorized maritime arrivals – boat people- are subject to mandatory detention pending the determination of their refugee status.  Moreover, those judged by ASIO to pose a security risk may, according to the High Court, be detained indefinitely if no other state will accept them. (Al Kateb)

The process for determination of refugee status and the policy of mandatory detention have been challenged on many grounds before the Australian courts. The High Court has recently been concerned in particular with the validity of the proposed transfer of asylum seekers to Malaysia and the potentially indefinite detention of those asylum seekers who have received an adverse security assessment. In both these cases, among others, the High Court has decided the legal issues on the narrowest legal ground through the established principles of statutory interpretation.

 In the ASIO case, for example, 5 justices of the High Court considered the validity of Regulation 4002, the public interest criterion. This regulation provides that a Protection Visa may not be granted if an adverse security assessment has been made by ASIO. The Court concluded that the provision was invalid because it was beyond the power granted by S 31(3) of the Migration Act.

My point is that the approaches of international law on the one hand and Australian law on the other are like ‘ships passing in the night’. There is little engagement or communication between them. Human rights lawyers talk in high-principled terms of the Refugees Convention, the ICCPR and CROC, and the opinions the Human Rights Committee and UNHCR, while the Australian courts respect parliamentary sovereignty and the language of the legislation.

Some judges will take a wider view. Our former Chief Justice Gleeson and Justice Gummow have been in a minority in finding that, as a matter of statutory interpretation, a statute must expressly authorize the abrogation of a fundamental right under the common law, especially the right not to be arbitrarily detained  

Most courts however, will confine their analysis to the language of the legislation. With respect to regional processing of asylum seekers, for example, a court is unlikely to consider the international legal implications of mandatory detention on an isolated island, where the legal system and health and educational opportunities are limited or non-existent, so long as the terms of the Migration Act are unambiguous.

The reasons for this lie in well-established principles of Australian law that international obligations have no domestic effect unless they are implemented by legislation, a principle that respects the sovereignty of parliament. On occasion where there is ambiguity in the Act, a court may look to the treaty to determine the meaning of the language used. There is a presumption that Parliament intends to abide by international law. The High Court in Mabo No 3 per Justice Brennan, that Australian common law can be informed by international law. But in the absence of legislation implementing a treaty to which Australia is a party, the law will be interpreted and applied according to the terms of the statute or jurisprudence established at common law.

The same statute-based approach was adopted in the Malaysia Third Country Processing case where the High Court interpreted the Migration Act s198 to require the Minister to declare that any transfer to another country for processing will be consistent with international law. Again, the emphasis by the High Court was upon the principles of statutory interpretation rather than upon Australia’s international legal obligations.

 All this will be familiar to you. The relevance to the human rights commission is that our governing statute requires us to assess acts by reference to international law and to employ the language of human rights. There is thus an inevitable tension where Parliament has chosen to implement a human right partially in Australian law and a judge is confined to interpreting the relevant statute and no more. Where the legislation does not implement the human right in issue, there is little the Commission can do beyond calling for parliamentary reform to the law.

2. Risks of engagement in the political debate

Racial Vilification

The limits to freedom of speech and the offence of racial vilification also raise challenges for the Commission. The decision by the Federal Court in Eatock v Bolt before Justice Bromberg, applying s 18C of the Racial Discrimination Act, raised for public discussion the appropriate limits of free speech under Australian law.

S 18C “It is unlawful for a person to do an act, otherwise than in private, if:

• the act is reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another person or group of people;
• and the act is done because of the race, color or national or ethnic origin of the other person or of some or all of the people in the group”

On the evidence the Court found published article in question contravened s 18C, the critical legal issue being whether the exemption under s18D applied to justify the conduct:

 “which has been done reasonably and in good faith for particular specified purposes, including the making of a fair comment on a matter of public interest if the comment is an expression of a genuine belief held by the person making the comment..

When questioned about this by the media, I unwisely suggested that the right to freedom of speech was a fragile flower and needed to be safeguarded. This prompted Mr Bolt to declare on his blog that I was a ‘ ray of light’ in the debate, an accolade from an unlikely source. Entering the debate has been the leader of the opposition, Mr Abbott, who has proposed that section 18 be abolished. His response was followed shortly after by the Muslim protest in Hyde Park against the controversial film clip demeaning Islam.

The Commission welcomes debate about section 18 C and D as a healthy community examination of the proper limits to free speech in a modern democracy.  But the Commission runs the risk of appearing to favor one side or the other in the debate.

My hope is that the Commission can advance discussion by presenting and objective assessment of international human rights law, and comparative practice in relevant jurisdictions.

3. Evolving international law: Marriage Equality

The Commission has issued a statement supporting legislation to allow marriage equality to all prior to the votes respectively in the Tasmanian upper house and Commonwealth Parliament. Both parliamentary bodies rejected the proposal. The Commission took the view that we should add our voice to the debate on the ground that evolving jurisprudence in international human rights law supported access by all to marriage, in addition to civil unions.

While I think this was the right decision, it is nonetheless a matter of judgment in each case, what role the Commission should play; any judgment that should be informed by accurate assessment of human rights law and appropriate grounding in the jurisprudence of comparable courts and nations.

Conclusions

Having raised some of the practical and legal issues for the Commission, it is important to observe the significant reforms undertaken by the Government to the implementation of human rights in Australian law. The first is the Compatibility and Human Rights (Parliamentary Scrutiny) Act 2012. This act establishes for the first time, a Joint Parliamentary Committee to scrutinize current legislation and bills for their compatibility with the treaties to which Australia is a party. Also for the first time, the benchmarks against which compatibility will be assessed are human rights treaties that have not been implemented directly as part of Australian law. These are:

• Convention on Racial Discrimination
• ICCPR
• ICESCR
• Convention re Discrimination Against Women
• Convention Against Torture
• Convention on the Rights of the Child
• Convention on the Rights of Persons with Disabilities

Most notably, the ICESC, that emphasizes economic, cultural and social rights, open up a new range of inquiry into rights that have not previously attracted scrutiny. The AHRC hopes to assist the Committee in determining whether existing or proposed legislation meets the treaty standards.

The second recent development of importance is the release by the Government of the Human Rights and Anti-Discrimination Bill 2012. The aim of the exposure draft is to consolidate the five Commonwealth Anti-Discrimination Laws and replace the current ADA, DDA, RDA, SDA and AHRCA. The Bill aligns with the Parliamentary Scrutiny Act, bringing Federal anti-discrimination law within the scrutiny powers of the Joint Parliamentary Committee. If passed the Bill will ensure a single test for discrimination that applies to all attributes and adds sexual orientation as a protected attribute.

The Commission has a vital role in monitoring and protecting human rights. The challenges are to navigate the gaps between international law and Australian law and to provide accurate, objective advice on the implementation of human rights for all Australians.