The future of human rights in Australia

 

AHRC Awards 2015

Thank you Craig for your generosity, for the 4th time, in guiding us through the awards. Well done for your very funny and successful Media Circus.

Your honours, distinguished guests, colleagues, ladies and gentlemen.

I acknowledge the traditional owners of the land, the Gadigal people of the Eora Nation and respect their elders.

Today, it really is about you!

We are here to celebrate the achievements of the Australians–individuals, businesses, civil society and community groups- in protecting and promoting our human rights and freedoms. May I thank you for your commitment to recognizing the dignity and respect owed to all people and also for your support for the Commission.

For the AHRC, this has undeniably been a ‘year of living dangerously’ as we have drawn attention to the erosion of the human rights and freedoms of all Australians and to the diminution of the checks and balances that preserve our parliamentary democracy...all in the year in which, ironically, we also celebrate the 800th anniversary of the Magna Carta, and the 70th anniversary of the United Nations Charter.

2015 has been a year of some notable successes for human rights but also some disturbing backward steps. In addition to the phenomenal success of Michelle Payne as the first woman to win the Melbourne Cup, with the support of her brother the ‘strapper’, Steven Payne.

Notable human rights achievements of the year include:

• Bedding down of the National Disability Insurance Scheme
  
   
• Growing community awareness of, and funding for, tackling the rise of domestic violence that has taken the lives of 76 women, killed by their partners or former partners. We should not forget that an average of 25 children have been killed in domestic violence over the last few years.
  
   
• Announcement by the Government to end blanket exemptions under State and Territory laws to the Federal Sex Discrimination Act in respect of sexual orientation, gender identity and inter-sex status and a promised plebiscite on marriage equality after the next election.
  
   
• We welcome the creation for the first time of an E Safety Commissioner and recognize the continuing work of the Royal Commission into Institutional Responses to Child Sexual Abuse.
  
   
• There are mixed results in pay equity and continuing workplace discrimination, but some encouraging health improvements for indigenous Australians.
  
   
• We have progress towards constitutional recognition of our First Peoples, with the appointment of Commissioner Mick Gooda to the newly announced Referendum Council.
  
   
• Foreign Minister has announced Australia’s bid for a seat on the 47 member Human Rights Council; a ringing endorsement of the UN human rights monitoring system under the rule of law.
  
   
• Finally, we warmly support the decision of the Government to grant permanent visas to 12,000 Syrians over the next 4 years.

But, disturbingly, this year we have also seen the human misery and slaughter of the Syrian conflict and, in Australia, the significant diminution of fundamental freedoms of speech, privacy, and assembly, of the right not to be detained arbitrarily without trial, and sadly the continued mandatory and indefinite detention of asylum seekers and refugees.

Today there are over 3,500 asylum seekers and refugees in Australian controlled detention centers. 1949 men, women and children in mainland Australia, 929 young adult men on Manus Island and 621 families on Nauru. In all 207 children remain detained on Nauru and Wickham Point.

As yet another Christmas comes around, many of these children have been detained with their families for over 2 years, despite the concerns of the United Nations that the dangerous conditions on Nauru are prohibited treatment under the Torture Convention and amount to ‘calibrated cruelty’.

The Commission’s Report, The Forgotten Children, an evidence based examination of the impact of lengthy detention on children by both the former and current governments, was rejected out of hand, before it was even read. Our findings have since been unequivocally confirmed by the Moss Report and a Senate Inquiry. 

The violation of human rights laws by respective Australian Governments, especially of the right not to be detained arbitrarily without charge of trial- a principle that was first set out in the Magna Carta 800 years ago-has attracted the concern of the international community. Just a couple of weeks ago, I was in Geneva, where the Human Rights Council conducted its Universal Periodic Review of Australia’s human rights record over the last 4 years.  105 countries spoke up, making 291 recommendations. At least 70 nations listed the treatment of asylum seekers and refugees as a primary concern, especially the mandatory offshore detention of children.

No other human rights issue has attracted such consistent attention in the Australian UPR process, though the over-representation of indigenous Australians in the criminal justice system was also a dominant concern.

Gone are the days when we could deflect a nation’s criticism on the ground that it too was in breach of human rights.  Today, Australia attracts the concern of our traditional allies, the United Kingdom, Canada, the United States, and of important and powerful states in Asia such as China, Japan and Indonesia.

I believe Australia deserves to be elected in 2017 to the Human Rights Council both because of our historical support for human rights law from the days of Dr Evatt and negotiation of the 1948 Universal Declaration of Human Rights. It is also important to engage with the international legal regime if we are to be effective in protecting human rights.

At a personal level, I have also been living dangerously this year. I now know the sound of a Kalashnikov rifle as I was in the 10th arrondissement on that tragic day-Friday 13th- visiting my son and new grand daughter in Paris where we were frighteningly close to the terrorist attacks at Le Petit Cambodge, a favorite watering hole.

Aside from this near death experience, this year has also been a challenging one for all the staff of the Commission, I would especially like to acknowledge the loyalty and commitment of those staff who joined me and other Commissioners in visiting all the detention centers, including three visits to Christmas island, the most recent visit being to Wickham Point where 76 children remain today. These experiences have been traumatizing as we listened to hundreds of personal family stories of attempted suicides, persecution and hopelessness.

I do, however, have some precious and inspirational memories. One is of some young, educated and spirited women from Sudan and Somalia, on Christmas Island (one of them a talented poet). They were sad and ill, dressed in drab departmental clothing and in despair. Some months later I saw them, still in detention at Wickham Point, but this time supported by their Australian communities, in brilliant colored African cottons, giving me huge, all-enveloping hugs and pressing me to try their national foods. I am pleased that  they have been released and are happy and productive members of the community.

Returning to the tragedy in Paris, my first instinct was, of course, horror at the deaths of 129 people and the hundreds injured, -the typically young bon vivants of Paris- enjoying a drink and music at the end of their working week.

My second response as a human rights lawyer has been concern at the speed with which some political commentators and leaders have chosen to conflate terrorism with border security, migration and asylum seekers. Reactions have been swift and harsh; borders are being closed, asylum seekers held in a “no man’s land” between countries and harsh counter-terrorist laws are being adopted.

I believe one of the greatest challenges for our political leaders is to ensure that counter-terrorist measures do not diminish our humanity for asylum seekers fleeing conflict and discrimination; that we should avoid the false stereotype that Muslims seeking Australia’s protection are potential terrorists. It is imperative that we do not equate violent terrorism with the peaceful religion of Islam.

It has been heartening that our Prime Minister has emphasized the rule of law and respect as core principles underlying Australian democracy. In his speech to Parliament a week or so ago on national security he began with the words:

If we want to preserve the values that underpin our open, democratic societies, we will have to work resolutely with each other to defend and protect the freedoms we hold dear.

The challenge over the coming weeks and months is to respond to global insecurity and mounting terrorist threats with rational and proportionate measures to protect our borders and security while also upholding the rule of law and our fundamental freedoms. 

Indeed, the strength of the rule of law is more truly tested when security is threatened than in times of peace. When Australia is threatened by terrorism, the need to protect our traditional freedoms assumes an even greater urgency.

Many counter-terrorism laws for example, introduced with unseemly haste just before Christmas last year, go well beyond what is proportionate, creating a chilling effect on freedom of speech and individual liberty and threatening citizenship and privacy. These laws are a damaging overreach and expansion of executive and ministerial discretion, and by diminishing or excluding judicial oversight by the courts, a threat to the traditional separation of powers under the constitution.

Over the last year, government has passed four tranches of new counter-terrorism laws, and another tranche has been to be introduced.

• Mandatory data retention laws require telecom providers to retain data of all those living in Australia for two years, giving access to the police and ASIO without a warrant or judicial or independent supervision. A similar law of the European Union has recently been ruled invalid by the European Court of Justice as a disproportionate interference with privacy and freedom of expression.
  
   
• The Australian Citizenship (Allegiance to Australia) Act 2015 has just been passed by Parliament to ensure that Australian citizens accused of fighting for a declared terrorist organization, or acting inconsistently with their allegiance to Australia, will be stripped of their citizenship automatically, including that of their children, if they are dual nationals.

This Act, I suggest, significantly threatens our freedoms. The loss of citizenship for dual nationals, including those who have spent most, if not all, their lives in Australia, strikes at the heart of Australia’s successful migrant and multi-cultural nation and threatens our social cohesion.

Counter-terrorism laws are but one example of the growing unchecked and unreasonable intrusion of executive government in our lives. Another is the use of the government’s power of administrative detention.

Over recent years, respective Parliaments have granted Governments the power to detain indefinitely various classes of persons, including most notably refugees and asylum seekers, along with those less well known who have infectious diseases, or who are mentally ill and unfit to plead to criminal charges, or who are subject to mandatory admission to drug and alcohol rehabilitation facilities or indefinite detention of serious sex offenders. Few of those detained under such laws have meaningful access to legal advice or regular independent judicial or administrative review.

The AHRC is particularly concerned by the growing instances of detention in prisons of those with cognitive disabilities for lengthy periods without releasing them into more appropriate facilities. As a lawyer I remain concerned that in some jurisdictions there is little access to legal advice or regular review by an independent tribunal.

[In a recent complaint the AHRC found that four Aboriginal men with intellectual and cognitive disabilities had been held for many years in a maximum-security prison in the Northern Territory. Each complainant had been found unfit to stand trial or found not guilty by reason of insanity. In respect to two of these men, they would have received a maximum sentence of 12 months had they been convicted by a court. Instead, they were imprisoned for four and a half years and six years respectively.]

Detention powers of the Executive have also been expanded to detain asylum seekers and refugees indefinitely, without meaningful access to legal advice or independent review.  Sometimes these expanded laws have had unexpected consequences.

• The mandatory detention provisions of the Migration Act have now been activated by s501 the Migrations Amendment (Character and General Visa Cancellation) Act 2014 that allows the minister to cancel visas on character grounds on the basis of his reasonable suspicion that the person does not pass the character test ie: any possible risk of committing certain offences including disruptive activities or inciting discord in the community.
  
   
• Over the last 3 months over 200 visas have been cancelled. This is 8 times the usual number. While earlier law required a criminal conviction by a court of law, the new provisions give the minister personal, non-delegable, non-compellable and non-merits reviewable powers to cancel a visa.  What a job! No obligations and no supervision!
  
   
• It is ironic to observe that the so-called s 501 visa cancellations have led to over 150 New Zealanders being taken to immigration detention on Christmas Island pending deportation. While the Australian community has been well aware of the continued use of Christmas Island for the detention of asylum seekers, media and political interest was stimulated by the idea that our cousins across the Tasman should be subject to the same treatment.
  
   
• Secrecy laws under the Australian Border Force Act passed this year impose a two year prison sentence on all immigration workers, who disclose ‘protected information’. Indeed, this law prompted the UN Rapporteur on Migration to cancel his visit to Australia when the government would not give an assurance that, for example, doctors and nurses working in the detention centers would be protected from prosecution if they revealed to him the conditions.
  
   
• Laws have been amended to prevent the courts from scrutinizing the legality of decisions relating to operational “on  water matters” and the rules of natural justice no longer apply apply.

Why does the law not protect us against these encroachments on our freedoms?

What explains Australia’s move to restrictive approaches to our fundamental freedoms and human rights over the last 15 years or so?

I suggest that there is a conflation in the public mind of the events of 2001-the Tampa Crisis on the 26 August, the “children overboard” “misstatements” of 6 October and a month later the 9/11 terrorist attacks on the United States.  Since these events, some political leaders have played on community fears of terrorism and the uncontrolled migration to concentrate power in the hands of the executive to the detriment of Australian liberty.

Over these years, Australia has become increasingly isolationist and exceptional in its approach to the protection of human rights.

• Our Constitution protects very few civil or human rights. We have the rights to freedom of religion, to compensation for the acquisition of property, to vote and to trial by jury. And the High Court implies a right of political communication...but very little more.
  
   
• Unlike every other common law country in the world and most civil law countries, Australia has no Charter or Bill of Rights. This means that we do not have the core benchmarks against which to measure or challenge laws that breach fundamental freedoms.
  
   
• Human Rights treaties, negotiated and ratified by Australia have typically not been introduced into national law by Parliament. The lamentable consequence is that key instruments such as the ICCPR and CROC are not directly applicable by our courts. 
  
   
• Three important exceptions are the Conventions on discrimination on the grounds of Race, Sex and Disability, where implementing legislation underpins the work of the  Commission.
  
   
• Compounding our isolation from international human rights jurisprudence, the Asia Pacific has no regional human rights treaty and no regional court to develop human rights law or to build a regional consensus, unlike Europe, North America, Africa, Latin America and the Arab states.
  
   
• It might be thought that we can rely on our courts to protect common law liberties. But, in practice, there is a palpable reluctance by courts to refer to human rights obligations that are not part of domestic law and the presumption of legality applies only if there is an ambiguity in law. As our laws today are drafted with such precision, or are so constantly amended, ambiguities are increasingly hard for the courts to find.

In summary, Australia has not developed the legal or parliamentary tools for protection of human rights that are available in comparable legal systems. It is for this reason that the Executive government, with the support of Parliament, is able to pass laws that threaten our democratic freedoms with apparent impunity.

It is for this reason that the Commission has long argued that Australia needs a legislated Charter of Rights to provide a benchmark against which Government acts and Parliamentary laws can be assessed to avoid Australia’s increasing isolation from international legal standards.

The exceptionalism of Australia’s approach to the protection of human rights brings me to the role of the:

Australian Human Rights Commission.

The Commission was established in 1986, and will celebrate its 30th anniversary next year. Our most important characteristic is independence from government, and the independence of its President and five Commissioners.

Over the past year we have responded to over 20,000 inquiries and 2,400 formal complaints, an annual increase of 7 %, and a 37% increase in human rights matters. I commend the work of the Investigation and Complaints unit working who have conciliated about 72% of complaints.

Indeed, it has been the work of the complaints team that informs our priority to work collaboratively with the business community. We know that two thirds of complaints arise in respect of employment and goods and services, underpinning our view that business is both a cause of discrimination and the vital solution.

I have been pleasantly surprised to learn over the last couple of years how genuinely committed the business community is to embedding the protection of human rights in their business model. Businesses increasingly recognize that the protection of human rights though diversity policies are good for business as well as the “right thing to do”.   [ eg: Bunnings and Crown Casino employing older and disabled workers]

But some businesses have more work to do. The employment of seasonal and migrant workers and cleaners in substandard conditions throughout Australia needs the disinfectant of daylight to ensure recognition of the problem and reform. We need to be more alert to where our super funds are invested. Should we invest in companies that service offshore detention centers? Australia lags behind our international competitors in developing a voluntary code for the human rights obligations of businesses. I hope to see a National Action Plan developed next year.

One of many lessons I have learned the last three years as President of the AHRC is that one of the most effective safeguards of human rights is the cultural expectation of Australians that our freedoms will be protected.  We are quick to assert our liberties under the rubric of a ‘fair go’- a phrase that is as close to a bill of rights in this country as we are likely to get. This cultural expectation is what keeps our freedoms alive today, as was illustrated a few months ago by the overwhelming Melbourne community rejection of Operation Fortitude. The cohesion across all of multi-cultural Australia to preserve Section18C of the Racial Discrimination Act, is one of the signal achievements of the year.

With the New Year comes optimism, a fresh start, and an opportunity to respond positively to the recommendations made under the UPR and thereby bolster our bid for a seat on the Human Rights Council.

It is imperative that Australia:

• Ends offshore detention on Manus and Nauru as illegal, eye wateringly expensive, and unsustainable in the longer term.
  
   
• Ratifies the Optional Protocol to the Convention Against Torture to enable independent scrutiny of all forms of detention including that of those with cognitive disabilities
  
   
• Releases all the children and their families in detention into the community and return those on Nauru to Australia
  
   
• Negotiate with our neighbors for a regional response to asylum seekers
  
   
• Confirm the independence of the Australian Human Rights Commission, by making appointments under transparent processes and ensuring our budgets are adequate to meet our statutory obligations.

May I finish by repeating how important it has been to the Commission’s work that we have been supported so strongly by the Australian community? Your letters, flowers, emails and public statements have been immensely encouraging. Indeed, at one stage we received so many flowers I thought I must have died the week before!

May I also thank the five Commissioners and all the staff of the Commission for your first class work and dedication to human rights.

Let us proceed with the Awards. Thank you all for joining us today.