Hobart Oration

“A fair go for all: the state of human rights protection in Australia”                                                                                                                                                                                                             Check against Delivery

I am honoured to be invited to deliver the 7th Hobart Oration and I acknowledge the traditional custodians of the land, the Palawa people of Tasmania.

I was pleased to see that the Bob Brown Foundation promotes not only the unique beauty of Tasmania but also the ideas of ecological integrity and human happiness. As an international lawyer, I have long maintained an interest in protecting our environment not only for its own sake but also as an aspect of the human right to a clean and sustainable environment.

One of the last times I visited Tasmania it was for a monitoring visit to the immigration detention centre at Pontville, where many asylum seeker children were detained, some of them alone without their parents. I well remember how Tasmanians embraced the asylum seekers making them welcome into local homes, schools and shopping centres. Mercifully. Pontville was soon closed and most families were released.

I first came to know Tasmania as a member of the Commonwealth’s Antarctic Science Advisory Council in the early 80s. I went to Antarctica in 1986 on what was pejoratively called a ‘round tripper’ or on a ‘jolly’, as an Advisor to the then Minister for Science, Barry Jones. In the company of sailors, scientists, artists and plumbers, as the only lawyer on board, I travelled on the German ship the “Ice Bird” to all the Australian bases over about 8 weeks.

The trip proved to be the experience of a lifetime in understanding the success of international law in preserving the Antarctic in the interests of all humankind. The Antarctic Treaty system has been one of the success stories of environmental diplomacy and of international law in both preserving national claims to sovereignty, while at the same time creating a sustainable international regime for the preservation of Antarctica for peace, science and the environment.

But I have not come tonight to talk about the success of the Antarctic Treaty.

Rather, I will consider a much more troublesome subject –that is, the protection of human rights and the idea of a “Fair go” in Australia today. Over the last nearly 5 years of my appointment as President of the Human Rights Commission I have learned some powerful lessons. It is one thing to advise a commercial client or lecture law students about the role of international law in domestic law. It is quite another to stand in the heat of Christmas Island and explain to a mother clutching her baby that the Convention on the Rights of the Child does not directly apply in Australian law and will not protect her child. In short, over the last years I have transformed from a conservative international and commercial lawyer to an advocate for human rights and a critic of some government policies that fail to meet Australia’s international obligations.

Perhaps the most important lesson I have learned, and the focus for tonight’s discussion, is that a ‘fair go’ is not just another empty phrase in an age of slogans. Rather, it is the genuine commitment of Australians to fundamental principles of equality, fairness for all and justice; a cultural norm upon which our democracy depends. It is this commitment to fairness and equality that has proved vital when our constitutional, parliamentary and judicial regimes fail to protect basic rights and freedoms.

Let me explain.

Perhaps the most disappointing aspect of Australia’s failure to protect human rights has been the failure of parliament itself.

800 years ago in 1215, King John was forced by his feudal barons to put his seal on the Magna Carta and to accept that the sovereign is subject to the rule of law. Since that time, Parliament has been a primary restraint or check on the executive power of governments. Of course, governments almost always overreach; it is in their DNA to expand legislative and discretionary powers and to avoid judicial scrutiny by the courts. It has been through democratically elected Parliaments, that the overreach of executive governments has been restrained and that fundamental freedoms have been recognised, evolving over the centuries.

If we fast forward to the 21st Century in Australia, it has become true that respective Federal Parliaments (often supported by opposition parties) have acquiesced in passing laws, introduced by the government of the day, that breach our basic human rights. One might date this trend from 2001 with the “children overboard” “false news”, the arrival of the “Tampa” carrying asylum seekers to Melbourne and the terrorist attacks on the US in September that year.  Since that time, we have seen a steady erosion of common law freedoms and the adoption of laws that breach Australia’s international treaty obligations.

Here are some brief examples:

• Australia is the only country in the world that mandates the detention, often indefinitely and arbitrarily, of asylum seekers and refugees. Parliament has passed provisions of the Migration Act that require detention without meaningful access to the courts on Christmas Island, Villawood, Yongah Hill and MITR for years. Worse, the Migration Act now requires transfers to Manus and Nauru.  340 refugees, including 48 children and their parents remain on Nauru and 861 males on Manus Island, in contravention of the clearest norms of international law.
• Counter-terrorism laws threaten freedom of speech and movement, an overreach that fails the necessity and proportionality tests, a recent example being control orders for 14 year olds and indefinite preventive detention powers to hold those who are suspected to be likely to commit a terrorist act in the future.
• Laws requiring the retention for 2 years of meta data, and permitting access to that data without a warrant, are an overreach of power that restricts the privacy of all Australians, the full consequences of which we have yet to see.
• Incarceration rates for indigenous Australians are the worst in the world, and in the Northern Territory, 95% (at least) of those imprisoned are indigenous.
• Laws continue to be passed that threaten freedom of speech: the Border Force Act secrecy provisions impose a 2 year prison sentence on social workers, teachers and other contractors who report on the conditions in refugee detention centres; counter-terrorism provisions restrict speech and movement; defamation laws  have a chilling effect on speech, journalists are prohibited from reporting on certain matters,  the media  abuses the right to freedom of speech with reports that are driven by ideology rather than facts; politicians also abuse the right when they make any assertion they please under parliamentary privilege.
• Prohibitions on the right to strike that are far more restrictive than exist in other comparable jurisdictions.
• Ministerial discretions to, for example, strip dual nationals of their citizenship and the withdrawal of visas on character grounds are not subject to judicial review and have led to increasing numbers in detention in mainland Australia and Christmas Island.

In contrast with legislation that positively breaches human rights, the Federal Parliament has also proved unable to act in respect to several contemporary issues:

• Marriage equality plebiscite has failed. Despite strong community support, Australia remains one of the few comparable nations in the world that denies the right to equality under our marriage laws. The HRC believes that equality before the law is an inalienable human right and not appropriate for popular votes. It is for Parliament to ament the laws to reflect changed community standards, not to transfer the responsibility to a popular vote. Indeed, it worth recalling the US Supreme Court’s decision last year on marriage equality in the Obergefell case based on the Bill of Rights 14th Amendment protecting equality before the law. The Australian High Court has no such power to resolve the issue.
• Parliament has failed to prevent the reduction of funding for community legal services threatening the right to legal advice and to access to courts and tribunals.
• Failure to exercise leadership on constitutional recognition of Aboriginal and Torres Strait Islander peoples.
• Failure to respond with workable solutions to proposals that s 18C of the Racial Discrimination Act 1975 be amended. The Parliamentary Joint Committee on Human Rights Inquiry over four months was able merely to set out a list of possible reform options. It failed to provide either policy analysis or a recommendation for legislative change. Government amendments to the Racial Discrimination Act continue to be debated in Parliament. I will return to the issue of race hatred laws in a moment.

In addition to the failure of Parliament to protect our freedoms, we have also seen a failure by our senior courts over the last few years to take into account our common law freedoms or the obligations Australia has accepted under treaties to which we are a party.

It has not always been so.

Receding into the mists of time is the liberal jurisprudence of the High Court of Australia in the 1980s and 90s that gave us Mabo (No2) recognizing Native Title, and Teoh’s Case that raised a “legitimate expectation” that government officials will take into account the rights of the child under the Convention on the Rights of the Child. You will especially remember the Tasmanian Dams Case confirming the wide potential reach of the external affairs power under the Constitution, empowering Parliament to ensure international treaties, on issues ranging from world cultural and environmental heritage to decriminalising homosexual acts, can be implemented as part of Australian law.

By contrast today, we have the High Court decisions in Al-Kateb that considered valid the mandatory immigration detention laws in respect of a stateless man who had been held for nearly 5 years, and the so-called “Paperless Arrest” laws of the Northern Territory that allow the arrest and detention of persons for up to 4 hours without bringing them before a magistrate.

My question is:

- How is it that Australia has become exceptional, even isolationist, in failing to protect human rights? Why have we drifted so far from our English common law roots to allow laws that are variance from the human rights protections available in the UK, throughout Europe, Canada, Africa, Latin America, even our cousins in New Zealand?

An illustration of how far out of step Australia is with other nations is the stark contrast between two recent decisions, one by the PNG Supreme Court and the other by the High Court of Australia:

• The PNG case concerned the constitutional validity of the detention of asylum seekers held on Manus Island. The judges decided unanimously that the detention contravened laws of PNG, including the 1975 Constitution that protects personal liberty.
• In striking contrast, the High Court of Australia decided in the M68 Case that the removal of asylum seekers from Australia to Nauru for detention, pending assessment as refugees, was constitutionally valid.

What is the difference between these two cases?

An answer is that PNG, as the more modern constitutional democracy, has a Bill of Rights.

Australia is almost unique among comparable legal systems in having very few legal means to protect our freedoms.

Today in Australia we do not speak the language of international obligations or human rights when discussing public issues. Indeed, when the UN Rapporteurs and the Human Rights Council have raised concerns about Australia’s failure to protect the rights of vulnerable people –including the Report that the conditions of detention on Nauru and Manus Island breach the Convention Against Torture - the response from Canberra has been:

…“we will not be lectured to by the UN”.

When considering my questions, it should be recognized that historically Australia’s role in promoting civil and political rights and non-discrimination laws has been one of genuine global engagement, leadership and commitment. “Doc” Evatt’s legacy from the 1940s; drafting of the UN Charter in 1994-5 and, at the request of Eleanor Roosevelt, of the 1948 Universal Declaration of Human Rights. He was President of the General Assembly when the Declaration was passed without a single negative vote.

Australia’s historical commitment in forging the foundations of modern universal human rights was consolidated by respective governments with the negotiation and ratification of all the major treaties, ICCPR, ICESCR, CROC, Refugee Convention, and the discrimination Conventions on Race, Sex and Disability, and the conventions on Genocide and Torture.

Sadly, however, many of these international initiatives have often not been translated into national laws and are thus not binding on the courts or Parliament. There are several legal and constitutional reasons for this:

• Australia is the only common law country in the world that does not have a Charter or Bill of Rights, indeed, it is ironic that recognition of the need for a legislated protection for freedoms has been at the state and territory level, from Victoria, ACT and now possibly Queensland.
• Australia is exceptional in that we have few constitutional protections for human rights. The Constitution explicitly protects only the right to vote, to acquisition of property on just terms, trial by jury on indictment, due process under Chapter 111 and freedom of religion. All other freedoms depend for protection upon other sources, especially the courts and the common law. It rested with the High Court, for example, to imply a freedom of political communication, a right that does not fully equate to the common law or international law rights to freedom of speech.
• While Australia has ratified all of the core human rights treaties, we have not implemented those treaty obligations in our national law e.g.: ICCPR, ICESCR, CROC, Refugee Convention, with three exceptions: the anti-discrimination laws on race, sex and disability.
• A troubling consequence of this exceptional legal situation is that Australia is isolated from the jurisprudence of other countries. In the Canada, the UK, New Zealand, for example, all laws are viewed through the prism of their respective human rights charters and Bills.
• Unlike North America, Latin America, Africa, Europe and Middle East, in the Asia Pacific there is no agreed Charter of Rights other than the ASEAN declaration and no commission or court to hear complaints or develop common jurisprudence on human rights.

Common law protections of fundamental freedoms and the principle of legality

Under the principle of ‘legality’, courts will not interpret a statute so that it encroaches upon, or limits, a fundamental right or common law principle unless Parliament has made it unmistakably clear that it intended the statute to do so.

This oft-repeated affirmation of common law protections is, however, illusory in many cases.

The reality is that, especially in the most contested issues such as migration and counter-terrorism laws, there is usually a crystal clear legislative statement by Parliament. If the legislation is not clear or is ambiguous, the government will return to parliament to make any necessary amendment (e.g. the Malaysia solution).

In short, while the common law traditionally protects our fundamental freedom of liberty, Parliament can overrule fundamental principles by granting the power to the executive to detain without trial.

For all these reasons, the role of the Australian Human Rights Commission becomes relatively important (compared with the NHRI of other countries) because there are so few government agencies to with a mandate in Australia to monitor human rights.

Mandate to hold to account both the government and private sector for compliance with the human rights treaties to which Australia is a party and the four non-discrimination laws re sex, race, age and disability.

Complaints processes to achieve conciliation among the parties:

• those who believe their rights have been breached can bring a complaint to the Commission where the matter will be investigated and efforts made to conciliate the matter before a complainant can go to the courts for a judicial determination. We settle about 76% of 2,300 cases annually and most are settled within 4 months of the compliant being made.

A major role for the President and the seven Commissioners is advocacy on race, gender, age, disability, Aboriginal and Torres Strait Islanders, and children along with general human rights such as LGBTI and arbitrary detention.

I have spoken so far in rather abstract terms. Let me now turn to a specific example of how freedoms are breached. This is the story of

Ms Dhu Case

Her story is illustrative of a range of human rights abuses that tend to cluster or accumulate in one tragic tale.

Ms Dhu was a 22 year old Aboriginal woman in WA.  In August 2014, the police were called to Ms Dhu’s home by her grandmother after Ms Dhu had been subject to domestic violence at the hands of her partner.

When the police realised that Ms Due owed $3000 in fines- parking, traffic offences etc.- she was arrested and taken to a police lock-up in South Headland in the Kimberley. When she complained of pain from the violence she had suffered, she was taken to hospital where, it is alleged, the police told medical staff that Ms Dhu was faking. She was diagnosed by medical staff with ‘behavioural issues’ and discharged back into police custody at the lock up. Again, she complained of illness and was taken to the Health Campus. Again, she was returned to her police cell when medical staff provided a form to the effect that Ms Dhu was fit to be returned to custody. Finally, and for the third time, she was put into a police van to be taken to hospital, where she died soon after from fractured ribs leading to septicaemia and pneumonia.



After two and half years, the Coroner has finally reported drawing attention to the underlying causes of yet another Aboriginal death in custody. Ms Dhu’s story is one of hundreds of often impoverished victims of domestic violence, - about 50 indigenous and non-indigenous women a year are killed by their partners or former partners- people are imprisoned under an unjust fines system. Ill-trained hospital staff, over-worked police and underfunded support services also play their role.



This sad story brings me to my broader point.

This year is the 26th anniversary of the Inquiry into Aboriginal deaths in custody.

It is shameful that the over 300 recommendations of the Royal Commission into Aboriginal Deaths in Custody in 1995 have not been adopted. Fundamental to the recommendations was the observation that indigenous Australians are detained more often and for longer periods than others, contributing to their disproportionate deaths in custody.

Today, the numbers of indigenous people in detention has more than doubled from the time of that Royal Commission in 1995. The unpalatable fact is that over 95% of juveniles held in the NT system are Aboriginal. The national figure is about 55%. Moreover, most adults imprisoned on criminal charges in the NT are Indigenous.

Incontrovertible CCTV evidence of Aboriginal juveniles subject to demeaning, debilitating and dehumanizing behaviour has galvanized the Australian community and prompted the creation of a Royal Commission with unprecedented powers of investigation that include consideration of whether the acts violate the Convention on the Rights of the Child (CRC).

The Convention requires, at a minimum that:

• Children should be protected from all forms of physical or mental violence, should be treated with humanity and respect when in detention and should not suffer torture or cruel, inhuman or degrading treatment.

We hope that this time, the Royal Commission’s Report will drive change.

What have the courts done to reduce the numbers of indigenous people in custody? 

The High Court decision in the so called “paperless arrest” laws provides an insight.

The paperless arrest laws empower the NT police to hold in custody for up to 4 hours anyone arrested without warrant in relation to certain offences.

Tragically, on 21 May 2015, a Warlpiri man, Mr Kumanjayi Langdon, died in custody of heart failure, about three hours after being detained under the Paperless Arrest powers. The coroner repeated the warning of the First Royal Commission about the disproportionate impact of laws on indigenous Australians.

Some months later the High Court had the opportunity to consider the validity of the paperless arrest laws.

The Court accepted that the common law would require a person arrested to be brought before a court as soon as practicable. The Court found, however, that the NT Act modifies the common law to allow post arrest custody to be extended for a reasonable period for questioning or further investigations.

Sadly, the laws have the effect of increasing the arrest rate of indigenous Australians and creating a risk of death in custody and of further injury to their physical and mental health.

All too easily these common-law principles are “trumped” by statutory provisions that limit our fundamental freedoms.

Racial Discrimination Act

Proposed amendments to the RDA’s sections 18C and D are to delete the words “offend, insult or humiliate” a person because of their race in public and to substitute the word “harass”. The word ‘harass’ is defined in the Sex Discrimination Act 1984 to include offence and humiliation.



This is entirely circular and poor drafting.

I raise this issue with some hesitation because as your Senate representative Jackie Lambie and the leader of the National party, Barnaby Joyce, have both observed, echoing John Alexander’s concerns, that s18C is not on the top 100 issues about which politicians are questioned by their constituents.

Much ink has nonetheless been split on the question whether the s18 C and D get the balance right in both protecting freedom of speech and prohibiting racially abusive language in the public arena. Reasonable minds will ask the question of balance and in a democracy, all laws and administrative processes should be subject to review and amendment if they no longer reflect contemporary standards.

In the experience of the AHRC, the sections 18C and D have worked well as they have been interpreted consistently by the Federal Courts over 21 years. I believe the proposed amendments to these sections should be rejected.

As the UN’s High Commissioner for Human Rights has said, there has never been a more important time to protect against race hate speech. If our leaders fail to support the key values underpinning our democracy, such as a ban on abuse on the grounds of race, then we are likely to see greater licensing of racially motivated abuse in the future.

The key point, often ignored in the current debate, is that to attract the civil prohibition under the RDA, the verbal abuse must be “because” of race in the public arena; that is on public transport, in shopping malls and in the street. Of course, you can say what you like around the kitchen table.

Amendments to the AHRC Act may well be useful in allowing the President to terminate vexatious and frivolous cases. We welcome these amendments if they indeed they are passed. Other reform proposals simply add to the administrative burden, cost and red tape of the Commission’s processes.

Conclusions

Australia’s failure to protect the most vulnerable in society from the encroachment by Parliament on our fundamental freedoms and the inability of our judges to challenge increasingly autocratic governments is a matter of concern for all Australians. In short, we should be both alert and alarmed by the growing abuse of our rule of law-based democracy by successive executive governments.

But what are the options when Parliament fails to exercise its traditional restraint when enacting new laws? What can we do when a majority government, in collaboration with opposition parties, passes laws that explicitly and without ambiguity, breach freedoms in the interests of national security, public order, border control and law and order, or even to save police having to fill out the paper work?

• I suggest that serious consideration should yet again be given to the need for a federal legislated Bill of Rights so that our courts can constrain the excesses of indefinite detention and cruel treatment; our courts have a benchmark against which to determine if laws adequately protect rights.
• As a nation, we need to agree upon core principles against which to benchmark and discipline executive power and to give courts the legal tools with which to challenge the overreach of the executive and parliament.

What can we do as citizens?

Human rights advocacy is not for the faint hearted, but I urge you all to speak up to reject slogans and superficial thinking and insist on evidence-based policy and laws. In an age of ‘post truth’, it is important to counter the spin by many in the media and politics, the distortion of facts and the abuse of freedom of speech by insisting on evidence and the rule of law.

Human rights are not the exclusive domain of the left or right in politics. Human rights are intended to protect the most vulnerable, to redress imbalances of power in the community and to advance fairness and equality for us all. In these days post Brexit and the US election, we need to reach back to those we have left behind to ensure they have a voice and benefit from all that our society can offer.

As you may be aware, Australia is seeking a seat on the UN’s Human Rights Council in a vote to be held this October. I believe we should have a seat on the council both because Australia can lead especially in our region of the world in promoting human rights and because our membership will have some persuasive influence on our politicians to meet our obligations under human rights treaties.

In conclusion, I return to the idea of a “fair go”. Laws are not effective if the community does not respect them. If laws are unjust, they bring democracy into disrepute. If Australians stand up for a “fair go” for equality and access to justice, then our political leaders will have to take notice.

It is the culture of equality and fairness that, in the final analysis, will protect the freedoms of Australians and ensure that the values of our democracy are upheld. I believe that the principle of a ‘fair go’ is alive and well in Australia. Let’s work to keep it that way.

Thank you.