"Human Rights in Australia Their Protection and Resolution Through the Law"

Dr Sev Ozdowski OAM Australian Human Rights Commissioner and Acting Disability Discrimination Commissioner

Chartered Institute of Arbitrators and Victorian Bar Seminar, Owen Dixon Chambers, Melbourne, 20 July 2005

1. ACKNOWLEDGEMENTS

I would like to acknowledge the traditional owners of the land on which we stand, and pay my respects to their elders both past and present.

I make this statement at any function where I speak in order to:

• pay my respects to the oldest continuous culture in the world;
• stress that Australia is a diverse society and that the First Australians are an important part of this diversity; and
• to demonstrate that we aspire to a just and fair Australia for all.

Mr. Neil Brown QC, Mr. Michael Shand QC, members of the Victoria Bar and of Chartered Institute of Arbitrators, distinguished guests, ladies and gentlemen, all.

2. INTRODUCTION

Contemporary HR issues in Australia

Tonight I will start by examining the human rights (HR) protection system in Australia. I will focus on both the law and broader civil society.

Then I will focus on three "BBQ stopping" human rights issues confronting civil society in Australia today. They are:

• anti-terrorism laws and measures;
• the application of the Migration Act and the implications that arise thereby for all people resident in Australia; and
• proposed changes to the Federal industrial relations regime.

I intend using these 3 themes to examine the state of the human rights framework in this country.

Finally I will present the case for what I believe "civil society" in Australia needs to work on in order to advance our human rights protection system.

The notion of civil society

The words "civil society" are written and spoken about a lot in contemporary Australia, so it might be useful if I gave you my interpretation of its key components.

So, what constitutes "civil society" in Australia?

• Federal Constitution and statutory laws.
• Robust parliamentary institutions and separation of the executive, the parliament and the judiciary.
• Freely contested elections with universal adult suffrage.
• An efficient judiciary and legal system.
• Well developed tradition of common law.
• An independent, diverse and questioning media.
• Well trained police forces who operate according to the "rule of law".
• Efficient public service that is merit based and free of systemic corruption.
• Independent watchdog bodies, HREOC, Ombudsman etc.
• Active and vigilant NGO sector.
• A community that generally expects all responsible members of that community to abide by the "rule of law".
• A genuine commitment to the international human rights standards we have ratified and on which so many of the above factors are based.

This list is not meant to be conclusive. I am sure you could each add other important ingredients, but I think that for the sake of tonight"s discussion it is an adequate starting point.

Further, I think all of us here tonight would agree that in the broad, Australia is a good example of a well functioning civil society.

However those to whom much is given, much is expected.

As the Prime Minister often states: "the work of reform is never finished" - well so too in the world of human rights, we can never afford to become complacent, and it is in that spirit that we must consider tonight, what still needs to be done.

3. HR PROTECTION IN AUSTRALIA

So let us focus briefly on three key areas of civil society, namely:

• the law and recent judicial interpretation;
• the parliament; and
• HREOC;

and demonstrate their shortcomings with regard to the HR protection system in contemporary Australia.

Role of the common law in protecting human rights in Australia

I believe we would accept as a general proposition that the Australian Constitution and federal statutory law offer only limited protection for civil, and perhaps political, rights in this country.

While some might suggest that the common law is more than adequate on that score, I am not at all convinced.

As many of you here would know, over the last 5 years I have been a strong public advocate for the need for a national, legislated bill of rights. It will therefore come as no surprise to you that I do not feel the common law is an adequate shield for Australia"s residents when their civil liberties are under pressure.

I think Her Honour Felicity Hampel, known personally to many of you present, captured the essence of this issue when, in a 2001 presentation to the Australian Legal Convention, she said:

"Whilst human rights instruments declare rights, the common law is a developed system of judge declared or judge made law, based on single instances from which, eventually, a principle is extracted, then refined, or adapted to the circumstances of another, different, single instance. It is not based on, and does not start by referring to fundamental rights.

The common law reasons up not down. It does not apply a declared right to the facts of a particular case, but asks how do the facts of this case conform with the "standard" or "existing common law". Occasionally, it may ask what should the common law be?

Whilst in some instances the common law may reflect fundamental human rights, it does not do so systematically, it is not bound to, and at times it is not able to. There is no obligation on courts in defining the common law to do so by reference to fundamental human rights, whether by reference to international instruments or implied rights and freedoms."

I agree completely with those remarks, as to why the common law tradition alone, provides insufficient HR protection.

Her Honour"s point is reinforced by the comments of Justice McHugh in the recent case of Al Kateb, where his Honour said this in relation to detention under the Migration Act:

"As long as the detention is for the purpose of deportation or preventing aliens from entering Australia or the Australian community, the justice or wisdom of the course taken by the Parliament is not examinable in this or any other domestic court. It is not for courts, exercising federal jurisdiction, to determine whether the course taken by Parliament is unjust or contrary to basic human rights".

Justice McHugh did go on and lament the practical effect of his legal reasoning. He acknowledged that the future prospects of the unfortunate Mr. Al-Kateb had shades of the fate of French prisoners on Devil"s Island: the Australian law acknowledges a legal possibility of release from immigration detention only by way of the grave.

His Honour further concluded that change to this state of affairs, from the legal perspective could only be achieved by adopting a federal bill of rights in Australia.

And I agree with this conclusion.

We have also seen recently indications from the High Court that it may reconsider the "legitimate expectation" principle outlined in the Teoh decision.

In Teoh, the Court held that the ratification of a convention "is a positive statement by the executive government... that the executive government and its agencies will act in accordance with the convention".

Accordingly, there is a legitimate expectation, in the absence of any indication to the contrary, that administrative decision-makers will act in conformity with the convention. It should be noted that this expectation forms a part of procedural fairness and does not give rise to a right to any particular outcome.

Nevertheless, the principle acknowledged at least a limited role for human rights in the operations of executive government.

The decision in Teoh has, however, caused significant controversy and in High Court's decision in Ex parte Lam there were strong indications from members of the Court that they may be prepared to reconsider the legitimate expectations principle.

Such a move by the High Court (to reconsider Teoh) would undoubtedly be strongly supported by federal parliament.

In a joint press release by the Attorney-General and the Foreign Affairs Minister, dated 10 May 1995, it was asserted: "that entering into an international treaty is not reason for raising any expectation that government decision-makers will act in accordance with the treaty..."

In fact there have been three previous attempts to introduce federal legislation that overrules the "legitimate expectation" principle. For a variety of different reasons on each occasion the Bill has failed to become law. Whether or not the recent changes in the Senate will mean that this issue is revisited by Parliament is not known.

What this demonstrates, however, is the limited and potentially fragile nature of the protection of human rights under the common law and reinforces, in my view, the case for a bill of rights.

Federal parliament

Many federal politicians believe they are the keepers of this nation's HR flame.

Events in the ACT and now in Victoria, indicate that some of their state and territory colleagues are more open-minded on that subject, by their preparedness to respectively legislate and actively formulate a bill of rights.

But generally the attitude is that of the NSW Premier Bob Carr who welcomed a state parliamentary report that found NSW residents" rights would NOT be enhanced by a state-based bill of rights. This, despite all the evidence gathered by the committee pointing the other way.

Premier Carr was moved to say:

"A bill of rights is an admission of the failure of parliaments, governments and the people to behave in a reasonable, responsible and respectful manner. I do not believe that we have failed."

One avoids with difficulty at this point reprising Mandy Rice Davies" immortal line: "Well, he would say that wouldn"t he!"

Of course not everyone agrees that Parliaments do actually provide the best protections for human rights.

As that lawyer"s lawyer Lord Scarman, British Lord of Appeal in Ordinary from 1977 to 1986 said:

"if you are going to protect people who will never have political power, at any rate in the foreseeable future - not only individuals but minority groups - if they are going to be protected, it won"t be done in Parliament - they will never muster a majority. It"s got to be done by the courts and the courts can only do it if they"ve got proper guidelines."

My own critique of politicians" position on this matter follows two lines of reasoning.

Majority rules

Firstly, decisions regarding the need for new or amended laws may be taken by Federal parliament without due consideration of human rights principles. This, for example, may happened for populist reasons or because of the heat of the moment - the September 11 terrorist attack, the Bali bombing or the London public transport bombings (the latter of course representing a ferocious assault on the very fabric of British society).

In fact, these reactive, often potentially draconian laws, are frequently introduced by governments of the day, with the tacit support of a large segment of the population.

At least as measured by focus groups and talk back radio.

This can give the process the appearance of a soccer match played towards one goal only; in that the point of view or values espoused by civil liberties" advocates, is drowned out by the roar from the Colisseum.

And let us be clear. Terrorist attacks against civilian targets constitute the gravest possible assault on human rights imaginable. Acts of terrorism are conceived and perpetrated by a few with the deliberate intent of causing indiscriminate death and serious injury to their victims - whoever they happen to be - for some often undefined and unspecified cause.

It is important, however, to note that such arbitrary and unjustifiable acts not only violate the human rights of their victims, but also circumvent both the democratic principles and the values established by the various international human rights conventions - the very essence of the society against which they are perpetrated.

In other words, a society"s civil liberties may also become a victim of terrorism.

Here I would like to quote from Professor George Williams, who is chairing Victoria"s Human Rights Consultation Committee, from his 2003 NPC address:

"The (ASIO) Bill must not be assessed as if we have become divorced from our history and shared values since September 11. This context is an important source of guidance at a time of community fear and national grief after the Bali attack."

My argument is - when it is necessary to draft new anti-terror laws, let us assess the new laws, in a systematic way, against the freedoms they are likely to infringe. Let us also ensure that the necessary infringements or limitations of HR are kept to a minimum.

Human rights principles are capable of delivering wisdom and balance - a combination that has served Australians well in the past and could be said to represent the core of our democracy.

Party discipline

Secondly, our political process, in regard to individual federal politicians, no longer provides the kind of protection and assurance that it once might have. The dominance of the major political parties and the rigidity of their discipline undermine the prospects of individual protection at the parliamentary level - Petro Georgiou and the "gang of four" notwithstanding.

Those recent amendments to the Migration Act, softening the impact of immigration detention on children and families, are a case in point.

These changes, negotiated by the Prime Minister, came after a long-term, sustained campaign, by all arms of civil society.

A campaign which I modestly feel, in regard to children in immigration detention, was given considerable new impetus by my report "A last resort?"

These changes to the Migration Act are undoubtedly the step in the right direction. In fact, the first such step since 1992.

But despite all this, Petro"s proposals, as outlined in his Private Member"s Bills, were considerably modified. And some would argue that if the events in London had occurred on the sixteenth of June 2005 instead of the seventh of July 2005, border security considerations could have outweighed the need to soften the immigration detention regime, despite Petro"s, and others, strong feelings to the contrary.

And I am not taking here an easy pot shot at the government. The Opposition policies are certainly not better. They are confused and lacking commitment to human rights in immigration area.

My point here is that within the major parties, organisational discipline makes it extremely difficult - not impossible - but very difficult for individuals or even groups of individuals to change laws from an HR perspective. Especially if there is a broad community support for the present policies.

HREOC

Now let"s have a look at HREOC and its role in the protection of human rights.

As you are all aware, HREOC investigates alleged infringements of the Federal Race, Sex, Disability and Age Discrimination Acts as well as alleged infringements of civil and political rights and some other alleged infringements under the HREOC Act.

Equality protection laws - including anti-discrimination Acts implemented by HREOC - are well-accepted in Australia. It is part of our history and commitment to the "fair go" principle. Allegations of discrimination in employment, education, housing, services and public places can be investigated by HREOC or one of the State and Territory equal opportunity agencies.

Where the parties cannot come to a negotiated settlement of such a complaint, in most cases the complainant is entitled to take the matter to court for a decision and a remedy, including compensation where appropriate.

Individuals may also complain to HREOC about alleged breaches of civil and political rights where the Commonwealth is involved.

This "right" also provides protection against discrimination in employment by the Commonwealth on a range of grounds, such as religion, sexual preference, political opinion, trade union activity and medical records.

Complaints received under this provision are also potentially resolved by conciliation between the parties. However, unlike complaints under the anti-discrimination laws, if the matter can"t be conciliated, even if the Commonwealth is found to be in violation of human rights, there is no provision for the matter to be referred to an Australian court for conclusive arbitration.

The Commission only has the power to report on the matter to the Parliament.

These reports may refer to individual complaints or to legislation which operates to violate the human rights of many - such as the Commonwealth Defence Force superannuation legislation which discriminates against same sex couples.

Although the Commission"s report must be tabled in Parliament, the government is under no obligation to adopt or even to respond to the recommendations.

The lack of an effective remedy for civil and political rights violations is evidenced by the limits on HREOC"s complaints powers. The contrast with remedies available in race and sex discrimination cases - not limited to financial remedies - is very stark indeed.

Put bluntly, the robustness of the court sanctioned remedies potentially available under the equality provisions, contrasts with the tameness of a "report to parliament" available in the civil and political rights domain.

4. CONTEMPORARY HR ISSUES

Remember my three BBQ-stopping HR issues at the start of the speech, namely:

• anti-terror legislation
• Migration Act; and
• the proposed industrial relations reform.

Well, if you will indulge me for a minute by letting me deal with them in reverse order.

Industrial Relations Changes

It comes as no great surprise to me that current polling on the proposed changes to the IR framework is running quite heavily against the government.

And I say this, while remaining utterly agnostic on the merits of the proposed changes to Australia"s IR framework.

Weak individual HR protection in deregulated economy

My reaction is motivated by a different stimulus, as I have previously argued in my many speeches. It is motivated by my view that there is an important link between economic efficiency, and in particular innovation and willingness to take risk, and our failure to protect adequately individual freedoms.

This failure to fully embed civil and political rights in the domestic legal framework, in a similar manner to equality rights, may also be responsible for subtle community resistance to important social and economic improvements that our political leaders are keen for us to embrace.

It is broadly accepted that the deregulated economic model, adopted in Australia by governments of all persuasions is here to stay.

We, the Australian community have been asked to take at face value the proposition that, if we are going to be competitive in world markets, we must take more individual responsibility for our economic productivity.

That leaves governments free to concentrate on basic service provision of health, education, defence and law and order.

But these dramatic changes are occurring against a backdrop of diminishing institutional protections, namely:

• trade unions face declining membership and relevance;
• parliament is dominated by the necessary discipline of "party line" voting;
• courts must work within the framework of the law and
• the media is ultimately responsible only to its shareholders.

Little wonder then that an average Australian feels increasingly isolated and threatened by the "new economic order". Not to mention a sense of resentment towards the governments (both Labor and Coalition) that has seemingly foisted all this on him/her.

It will be very interesting to observe the passage of this matter and see whether on the economic/globalisation front these proposals represent "a bridge too far" for the Australian community.

Bill of Rights would even-up balance in deregulated economy

Arguably, an Australian Bill of Rights, would help to even-up the balance in a deregulated world. It will strengthen individuals and give them some confidence in taking risks. My view is that giving rise to legally enforceable outcomes could restore some sense of balance and increase economic innovation and efficiency.

In fact I argue further that if individual Australians were confident that the requirement to become economically more self reliant was underpinned by a safety net of enforceable rights, they might feel more relaxed about their increasingly deregulated world and it could also form the basis of a new "social contract" with the government.

Disability Discrimination in employment worst post IR reforms?

There is one more point I would like to make wearing the hat of Disability Discrimination Commissioner. Let us assume that in fact the net effect of the proposed IR changes would make the average cost of wages in Australia"s economy lower.

Over the medium term, people with disabilities who can work, will then face even more barriers to work-force entry and retention as their cost to business will be higher than the average.

It will then be up to the government to institute off-set measures to level the playing field for people with disabilities who can or wish to enter the workforce. Thus in the context of IR reform, it may be necessary to look at the added cost and risk to employers of employment of people with disabilities.

Anti-Terror Laws

The proposed curtailing of some personal freedoms explicit in the Government"s "war on terrorism" is broadly something we accept as necessary. This was clearly stated earlier in my speech tonight.

But it is also important to realise that the protection of human rights is one critically important aspect any government must consider and address when preparing its response to terrorist acts against its citizens going about their daily lives.

Having said this, I believe that our government and Attorney-General are more than capable of looking after the "anti-terror side of the ledger".

My job, along with the rest of the constituent parts of the civil society, is to take care of the other column in that ledger - the one marked "human rights".

HR standards necessary to measure effect

Achieving this balance makes a judicially enforceable Bill of Rights even more essential.

In the absence of a legislated list of existing rights, it is difficult to measure what we are being asked to give up, when the Government proposes such security measures. We have no easy way to assess the "proportionality" of government anti-terror proposals.

Sometimes I worry that collectively we may become so desensitised to future erosions of our civil liberties that after a while we simply won"t recognise how much we have sacrificed along the way as each new amendment is passed.

A bit like the frog experiment: put a frog into a beaker of boiling water and it jumps out, like any sensible frog would. But, put it into a beaker of cold water and slowly bring it to the boil and the frog lets itself be boiled alive!!

ASIO amendments hard to measure what was HR sacrificed

The Federal Government"s previous parliamentary difficulties with the ASIO Bill are a good case in point.

Both within the Liberals" Party Room and in the Senate, much effort was expended to try and establish exactly what the proposed legislation would mean in practice.

And what a difficult task that proved to be.

Even so the Bill that was finally approved, with Labor support, contains a number of extremely confronting features from a human rights perspective.

To quote from the HREOC press release that was issued after the passage of the Bill and the effect on children:

"It is also relevant to note that the ASIO Act provides for significantly greater periods of detention than the Crimes Act 1914 (Cth), which already makes careful and measured provision for the detention and questioning of children arrested on suspicion of having committed a crime. Under the ASIO Act a person aged between 16 and 18 may be detained for periods of up to seven days under any one warrant. In contrast the Crimes Act (Cth), provides for a maximum of two hours detention (not including time taken for matters such as consulting legal representatives)".

Bill of Rights allows you to measure proportionality

I am not suggesting that the pre-existence of a Bill of Rights would automatically preclude a government from implementing legislation such as the ASIO Bill, after all the current British Government has passed similar laws.

The difference is that in Britain the Home Secretary was required to formally suspend the operation of the Human Rights Act in order to implement those sections of the proposed bills which were contrary to the Human Rights Act.

This has the effect of putting the parliament and their constituents "on notice" that existing "rights" are under threat, thereby concentrating everyone"s attention and most importantly permitting proper consideration of the vital issue of proportionality.

National ID card legislation

The same would apply if this government decides to introduce National ID card legislation.

Say the dominant purpose of the law was to assist with the "War on Terror", which might be constitutionally possible. Then clearly an examination of such a proposed Bill would require a very clear understanding of what civil rights were being sacrificed against the potential gains in security terms.

Such an examination would be different again if, as the Minister for Immigration suggested on the weekend, the dominant purpose of a biometric "smart ID card" was to assist with better implementation of the Migration Act. Either way a Bill of Rights helps measure the proportionality at stake.

My own thoughts at this stage are:

• ID card, sensu stricto, does not infringe provisions of the International Covenant on Civil and Political Rights;
• but the link between terror and benefits of ID card is not established (Spain has tough ID but Madrid train bombings);
• it has significant privacy implications and major possible side-effects; and
• goes against Australian culture and undermines the individual freedoms.

Bill of Rights and HR culture

And let us not forget the significant educational role of a bill of rights.

As Cherie Blair QC, civil rights campaigner and wife of the British Prime Minister noted when in Australia:

"The most significant impact of the Human Rights Act has been the way in which the language of human rights has begun to permeate the consciousness of individuals and organisations, and thereby to inform the policies and practices of governmental and non-governmental bodies alike".

It is this "permeating of the consciousness of individuals" which is at the heart of what I could term "the holy grail of human rights" in Australia, namely how do we all better infuse our fellow Australians with an understanding of human rights?

Migration Act

The Palmer Report has highlighted how officials in the Immigration Department have been exercising considerable power over other persons present in Australia, with little or no "consciousness" of what effect their actions were having on those persons" civil rights.

Or as Mick Palmer put it:

".....the DIMIA management approach to the complexities of implementing immigration detention policy.........fails to deliver outcomes required by the Government in a way that is firm but fair and respects human dignity."

Palmer exposes mental illness system failures

And again putting on my Disability Discrimination Commissioner"s hat for a moment, it is noteworthy that both Cornelia Rau and Vivian Alvarez were suffering from mental illness at the time they were apprehended.

As many of you here tonight are well aware, persons suffering mental illness in the Australian community often have their rights abused by the "authorities".

As the summary of my Australia-wide mental health community consultations will soon reveal, that is partially due to inadequate resourcing by State governments. But it is not helped either by the absence of enforceable civil rights.

5. CONCLUSION

So let me conclude tonight on the subject of the Migration Act.

I really do not believe that after one considers:

• the implications of the Palmer Report;
• my report on children in immigration detention, "A last resort?";
• all the cases run by the legal fraternity, many of whom are here tonight;
• and the active campaigns of NGOs like ChilOut, Amnesty, and many others;
• and considers the small amount of progress Migration Act reform

that there can be any alternative to a bill of rights - as Justice McHugh observed in Al-Kateb.

In fact where federal parliament passes a law that is unambiguously linked to a "head of power" within the Constitution, the potential reach of that law is quite startling.

When the Hindmarsh Island Bridge Case (Kartinyeri - 1998) was being argued before the High Court, the Commonwealth Solicitor-General agreed with Justice Kirby"s (incredulous) question, whether under the "race" power of the Constitution, Nuremberg-style race laws or South African apartheid laws, if enacted by our federal parliament, would be binding?

The Solicitor-General confirmed that was the case.

In other words, federal parliament is free to legislate unjustly, so long as it stays within the Constitution"s heads of power.

Finally, let me leave you with the opening lines of Mick Palmer"s report:

"Protection of individual liberty is at the heart of Australian democracy. When there exist powers that have the capacity to interfere with individual liberty they should be accompanied by checks and balances sufficient to engender public confidence that those powers are being exercised with integrity."

Coming from a former federal Commissioner of Police, I think this elegant summation says it all.

Australia needs the addition of a Bill of Rights to ensure the correct weighting of Mick Palmer"s "checks and balances".

Last updated 27 July 2005