Free and Equal: A National Reform Agenda for Human Rights in Australia for the next decade

Commission President Emeritus Professor Rosalind Croucher AM addressed the Castan Centre human rights conference on July 26.  The topic was ‘Free and Equal’: A National Reform Agenda for Human Rights in Australia for the next decade.

Thank you to the Castan Centre, and its Director, Professor Sarah Joseph, for inviting me to speak. Let me begin by acknowledging the traditional custodians of the land on which we meet, the Wurundjeri peoples of the Kulin Nation and pay respect to Elders, past, present and emerging.

In December last year, I announced that the Australian Human Rights Commission would be undertaking a major project: Free and equal—an Australian conversation on human rights. Why? I wanted to lift the discussion on human rights and throw out a ‘sky anchor’, looking to the future.

It was delightful to find a copy of the Universal Declaration of Human Rights in our conference package. That great document represented the coming together of different intellectual, philosophical and political traditions into a set of common commitments. I would like to think like they did in focusing on the questions of greatest importance to humankind. 

So it is not surprising that the title of our national conversation is drawn directly from the first sentence of the first article of the UDHR: ‘All human beings are born free and equal in dignity and rights’.

The national conversation seeks to engage the public in answering big questions, ‘what kind of Australia do we want to live in?’ Not just for ourselves, but for our children and our children’s children. What makes an effective system of human rights protection for 21st century Australia?

In launching the project at the Human Rights Awards last year, I explained why it is needed—

Because we seem to have lost sight of the overall purpose of protecting the human rights of the whole community.

Legislation is not comprehensive in its protection. Our discrimination law is complex and does not protect everyone in our community. Our discrimination laws are important: they directly reflect our international commitments and can achieve many positive systemic outcomes, but discrimination law is framed in the negative space—what you can’t do—and relies on a dispute before offering a solution.

Our human rights system was innovative in the 1980s, but has now been surpassed by developments in other countries.

And so, we need to reimagine our system of protections of human rights and freedoms—so that we can provide everyone with the opportunity to be the best that they can be.

The past decade has been characterised by debates about human rights that are divisive, and have pitted people against each other. These debates have been myopic. They have been focused on individual ‘spotfires’, without considering the broader landscape in which they occur. 

Issues have been ‘resolved’ with stalemates—people being divided about what reforms are necessary, and limited change actually occurring.   

There has been a movement away from consensus approaches to human rights, where there are commonly agreed and commonly expressed commitments to key human rights priorities for the nation. So let’s think higher; get back into the mindset of those who came together in forging the UDHR.

I note in this respect that if you look at the treaties Australia has committed to and their ratification over the past 40 plus years, almost half a century, it is an equal split of Coalition and Labor support. It is neither a ‘Labor’ nor a ‘Coalition’ project.

But the recent pattern of human rights being a language of dispute has meant that each time a new controversy arises, freedom of religion for example, people are so entrenched in their views that the broader conversation we need to have is not the one we actually end up having. Assumptions are made and labels used to characterise opponents, none of which is helpful.

What concerns me about this is that human rights are not properly considered. And the outcomes we all think are actually important are actually lost sight of. After all, human rights are not absolute, immutable propositions, apart from a few—like the right to life, freedom from torture and freedom from slavery.

There are checks and balances that exist with most human rights and freedoms. There are strict criteria for when you can limit rights. There is guidance on how you balance rights when they conflict. Human rights law, properly applied, provides a set of tools to guide decision making by making transparently known the various factors that are being weighed up.

In conducting the national conversation project, we are looking to ways to fully integrate human rights into our national systems of law, policy and programs—as a deliberative tool to aid better government decisions and not as an afterthought.

To achieve this, we are embarking on an ambitious program of work over the next year. In April we released an Issues Paper to open up the process—as a basis of listening to people’s reflections on what rights mean and matter to them, and what they think government should do about them.

Human rights lawyers will be familiar with the framework we use, expressed as ‘respect, protect, fulfil’. It is a way of showing the various obligations on government if they are to fully protect human rights or remedy a breach of human rights. But is a way of showing that there is no one measure, no silver bullet to protecting human rights. It is a much more sophisticated and nuanced endeavour that requires multiple actions, across multiple areas, with deliberative mechanisms in place.

Let’s unpack this.

First, the obligation to respect human rights, in general terms, is for the government to ensure that, in its own actions, it does not breach human rights.

What should they do to achieve this? Some examples we set out in the issues paper include:

• that human rights are protected in Australian law and remedies are provided for breaches when they occur
• that mechanisms exist to enable the participation of affected groups in law and policy making—an Indigenous voice to Parliament fits in this category, as does the principle of free and informed consent so important in the world of disability policies and actions and in relation to policies affecting Indigenous peoples and in the context of approaches to elder abuse
• that the gender and child’s rights impact of laws and policy is understood

The obligation to protect human rights goes further than this: It requires action by government to prevent others from breaching human rights. Some examples of what this may involve include:

• there are laws that make discrimination unlawful and provide remedies for breaches 
• businesses have obligations to respect and protect human rights (eg human rights due diligence to identify, prevent and account for human rights risks and impacts, including the example of ‘modern slavery’ statements)
• human rights education initiatives build awareness of rights and responsibilities in the community and human rights understandings are woven into school curricula

And then the third pillar—the obligation to fulfil human rights—requires positive, proactive steps to fully realise human rights and address inequality. Some examples of actions that this may involve, include:

• that targeted programs exist to address known inequalities (eg Close the Gap; National frameworks on family violence, child protection, National Disability Insurance Scheme), and
• proactive planning and measurement frameworks address priority human rights issues (eg national action plan on human rights; national implementation mechanism for Sustainable Development Goals)

So through the national conversation we are aiming to locate discussion and debate within an understanding of this respect, protect, fulfil framework. To have people think about the measures across all of these domains that are needed if we are to truly realise and fully protect human rights. To embed human rights thinking in the national psyche.

By mid-2020 the Commission intends to:

• recommend an agenda for federal law reform to protect human rights and freedoms fully
• recommend priorities for reforming federal discrimination law to make it more effective, comprehensive and fairer in its protection, and simpler to understand
• articulate key actions that all governments must take to adequately protect the human rights and freedoms of all Australians
• identify how we can build community understanding and partnerships to realise human rights and freedoms
• identify options to invest in and build community capacity to realise human rights and freedoms.

We have opened our Issues Paper for public submissions and look forward to hearing from people about their priorities for reform across these areas. But there is more, particularly for stakeholders with technical interest and expertise. Over the next 12 weeks we will be ramping up our activities for the national conversation.

Next week we will be releasing a Discussion Paper setting out the Commission’s federal discrimination law reform agenda—again for public feedback.

In mid-August, we will convene a technical workshop on national accountability mechanisms for human rights.

In late August, we will release a further Discussion Paper outlining proposed reforms to federal law and policy to positively frame human rights—moving them from reactive tools to proactive considerations.

Part of this thinking includes the possibility of an Australian Human Rights Act (again). It is not only this, but this is a key part. It is worth noting in this respect that the Australian Human Rights Commission was born in response to the ICCPR, it was envisaged as the domestic implementation of it, after Australia ratified the ICCPR in late 1980. This was the first Commission, under Dame Roma Mitchell. Then when the Commission was put on a permanent footing, in 1986, it was designed around an Australian Bill of Rights Act. This passed the House of Representatives but not the Senate. The remainder of the legislation, concerning us, was passed. And so I say that we are like a ‘doughnut’, with a hole in the middle. Historically, such an Act is a missing piece in our 1986 architecture. We can, and do, take complaints that are directly referable to the ICCPR, and have done so since 1981, but this part of our jurisdiction is largely invisible.

We will convene a series of technical workshops to consider these Discussion Papers in the coming months, as well as general community consultations nationally.

And this week we also announced the centrepiece of our national conversation project: our national conference on human rights. This will be taking place on Tuesday 8 October in Sydney with our special guest, Dr Michelle Bachelet, the United Nations High Commissioner for Human Rights. We had planned to hold the conference on the Friday of that week, but the Commissioner’s diary changes meant that we had to reschedule for Tuesday. I acknowledge that this day is the eve of Yom Kippur, the most sacred day in the Jewish calendar (and one that is recognised as a special holiday by the UN), and this will prevent many of those observing this day from attending. The timing was out of our hands. We will be looking to provide other means to access the proceedings of the day for all those unable to attend for religious or other reasons.

The High Commissioner will be exclusively the guest of the Commission for three days and will participate in a range of consultation activities for the national consultation, as well as the conference and government meetings. 

This busy period will end the following week when we also host Professor Manfred Nowak, one of the world’s most eminent human rights lawyers. He has many ‘groupies’ in the human rights world and it is OK to swoon! We will ask him to sign our copy of his outstanding treatise on the Travaux Préparatoires of the International Covenant on Civil and Political Rights.

On Wednesday 9 October, Professor Nowak will be launching, at the UN General Assembly, the UN Global Study on Children Deprived of Liberty—an internationally significant moment for the protection of children’s human rights. He will then fly direct to Sydney form the launch we will host the Oceania launch of the global study with Professor Nowak.

He will then participate in further workshops for the national conversation looking at juvenile justice reform, immigration and asylum seeker issues (especially relating to children) and challenging issues relating to persons with a disability and in aged care facilities. As a leading expert on the Convention Against Torture, and primary author of the OPCAT treaty, Professor Nowak is well placed to assist in domestic discussions, which can then feed into the two royal commissions currently on foot.

So to conclude: a call to action.

Our system for protecting human rights is simply not good enough.

We don’t have a sufficient level of proficiency, or fluency, to converse in human rights terms when discussing issues of major concern to the community.

There is a lack of common purpose about what human rights outcomes we aspire to achieve as a nation so that we can be the best we possibly can be.

We don’t have something we can ‘put on the fridge’ and talk to our kids and grandkids about over their cornflakes.

Michael Kirby remembers the UDHR being given to every schoolchild in Australia, on that flimsy aerogramme paper that some of you may remember. 

We have rights and freedoms, but they are largely invisible. Hence the importance of a document like the Universal Declaration of Human Rights.

And while federal policy on human rights drifts along without clear purpose and without vision, community pressure to change this is also somewhat lacking.

And that is the call to action.

Everyone needs to do more if we are to fully protect human rights in Australia. It is harder to reach a destination without a map.

We need to have hard conversations to identify the priorities for action and reform, and the basis on which we balance competing interests.

So please, join us in the national conversation.

For our part, we will provide you with clearly articulated views on what we think needs to happen—on the priorities for reform. 

We look forward to you agreeing with us, and also to disagreeing with us about these priorities—that is the essence of good and constructive conversation. It is also respectful. 

Let’s make this a truly Australian conversation on human rights.