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Social Inclusion and Human Rights in Australia

Rights and Freedoms

Chain Reaction Foundation Breakfast Cafe

KPMG Level 15, 10 Shelley Street, Sydney

Tuesday 20 August 2013
7:45am

(Check against delivery)

Social Inclusion and Human Rights in Australia

I would like to acknowledge the Gadigal People of the Eora Nation, the Traditional Owners of the land upon which we gather today. I pay my respects to your elders, past and present.

Thank you KPMG and Paul Reid for sponsoring this breakfast and also Margaret Bell of the Chain Reaction Foundation for your work in fostering social cohesion and inclusion. I am pleased that members of the business community are here today as it is vital for the effective implementation of human rights that we work effectively with employers, entrepreneurs and companies.

At the outset I would also like to acknowledge that we are now in a caretaker period leading up to the federal election. The caretaker conventions require that as the head of a Government Statutory Agency I must maintain neutral and impartial, and it would be inappropriate for me to speak about government policies.
Social inclusion is about people being able to participate in society. It is about creating conditions for equal opportunities for all. Social inclusion requires that all individuals be able to ‘secure a job; access services; connect with family, friends, work, personal interests and local community; deal with personal crisis; and have their voices heard.’[1] This essentially means that all people have the best opportunities to enjoy life and do well in society. It is about making sure that no one is left out.[2]

Research conducted by Melbourne University and the Brotherhood of St Laurence in 2010 found that more than one million Australians are subject to profound social exclusion throughout Australia. The research also found that a quarter of Australians aged 15 years plus (4.5 million) experienced some degree of social exclusion in 2010.[3]

Experiencing discrimination can lead to poor health both physically and mentally, taking years of life expectancy.[4] We know that racism can directly or indirectly exclude people from accessing services or participating in employment, education, sport and social activities. Racism excludes people, which can in turn lead to entrenched disadvantage.

In 2010, the Australian Human Rights Commission conducted a review of human rights and social inclusion within African Australian communities. The research found that a lack of housing, limited employment opportunities and access to education were barriers to successful settlement and social inclusion, discussion of these issues was overwhelmingly prefaced by problems they encounter from negative stereotypes, prejudice and racism.[5]

This morning I would like to discuss the:

  1. The objective of social inclusion, and its relationship to human rights law
  2. Human rights framework in Australia and the role of the Australian Human Rights Commission, and
  3. Its work to combat racial discrimination and vilification.

Social Inclusion and Human Rights
There is no universally accepted definition of social inclusion. The Australian Social Inclusion Board defines social inclusion as having the resources, opportunities and capabilities to:

  • Learn (e.g. participate in education and training);
  • Work (e.g. participate in employment, unpaid or voluntary work including family and carer responsibilities);
  • Engage (e.g. connect with people, use local services and participate in local, cultural, civic and recreational activities); and
  • Have a voice (influence decisions that affect them).[6]

I like the definition used by UNESCO as it highlights the value of human rights in a socially inclusive society. This approach is in line with the Copenhagen Declaration and Programme of Action, a key outcome of the 1995 World Summit for Social Development. UNESCO uses the following definition:

Inclusive society is defined as a society for all, in which every individual has an active role to play. Such a society is based on fundamental values of equity, equality, social justice, and human rights and freedoms, as well as on the principles of tolerance and embracing diversity.[7]

When discussing social inclusion, its twin- social exclusion –necessarily arises. Social exclusion is the "restriction of access to opportunities and [a] limitation of the capabilities required to capitalise on these [opportunities]."[8] We also know that there is a correlation between discrimination and social exclusion. Many exclusions stem from discrimination of individuals or groups on the grounds of their attributes, or social, economic or physical disadvantages. Discrimination can impact a person’s employment and income, their access to health care, education and other services. It can also make it very difficult to participate in their community – for example, in work, or in joining a community group.

This is where human rights come in. The ability to participate in society, and to be free from discrimination and disadvantage is not only an ideal. It is a basic human right – one that we all share in common; a right enshrined in the Universal Declaration and a number of other treaties that make up the body of international law.

In 1948 the international community came together to endorse the Universal Declaration of Human Rights. This document outlines the basic civil, political, economic, social and cultural rights to which all humans are entitled, and states that human rights are to be enjoyed by all people, no matter who they are or where they live.

At the time of adoption, the Universal Declaration was an aspirational document that did not create any legal duties on States; rather it was adopted as an expression of the fundamental values and principles shared by all members of the international community.

Since its adoption we have seen an extraordinary development of international, regional and bilateral human rights treaties, legal jurisprudence developed by UN monitoring bodies, and national laws.

Australia, as a good international citizen, has been closely engaged with the development of human rights law, particularly since Doc Evatt’s role as President of the UN General Assembly in 1948. Australia is a party to seven key human rights treaties.

  • International Covenant on Civil and Political Rights (ICCPR)
  • International Covenant on Economic, Social and Cultural Rights (ICESCR)
  • Convention on the Rights of the Child (CRC)
  • Convention on the Elimination of All Forms of Discrimination against Women (CEDAW)
  • Convention on the Rights of Persons with Disabilities (CRPD)
  • Convention on the Elimination of All Forms of Racial Discrimination (CERD)
  • Convention against Torture (CAT)

Under these agreements, the Australian Government is bound to avoid taking any action which may breach human rights and to take positive steps to ensure that people are able to enjoy their rights.

Despite this active commitment to international human rights, Australia has been slow to implement these rights in national law. This point is crucial to understanding the role of human rights law in Australia, as- consistently with the principle of parliamentary sovereignty- no treaty is directly applicable by our courts unless it has been implemented through legislation. In fact, successive Parliaments have not implemented the primary treaties such as the ICCPR, ICESCR and CROC, though these treaties are scheduled to the AHRC Act and form the benchmark for our role in monitoring compliance with human rights in Australia.

Moreover, unlike all other comparable common and civil law countries, Australia has very few constitutional provisions to protect fundamental rights, and no human rights act. Human rights charters or constitutional entrenched bills of rights have been enacted in the US, Canada, and Europe (through the European Convention on Human Rights, with its individual right to appeal to the European Court), and Africa and Latin American states can appeal to a regional human rights court. Even our close neighbour New Zealand has a human rights act and all its laws are viewed through the prism of these rights.

Unfortunately in Australia, there is a longstanding ‘disconnect’ between international human rights law and national law; they are like ships passing in the night. Rather than a legislative or constitutional approach to human rights protection, successive governments have employed three institutions:

  • Parliament, through Joint Standing Committee on Treaties, and more recently the Parliamentary Joint Committee on Human Rights that examines all legislation for human rights compliance
  • Courts and the judiciary in developing the common law (eg Mabo(no 2))
  • The Australian Human Rights Commission

The Australian Human Rights Commission

Social inclusion is about participation, equal opportunity, and empowerment. These are values that underpin our work at the Australian Human Rights Commission, including anti-discrimination laws in respect of disability, age, social justice and Aboriginal and Torres Strait Islanders, race, and gender. Recent Commission priorities lie in responding to racial vilification, especially cyber hate and cyber bullying in schools and the workplace.

Before I talk about our work I think it’s important to provide you with a brief overview of the Commission, to let you know who we are and what our mandate is.

The Commission is Australia’s national human rights institution accredited with an ‘A status’ under the Paris Principles. The Paris Principles set out the international minimum standards for the status and functioning of national human rights institutions. They provide that national institutions should have a broad mandate based on universal human rights standards, be autonomous and independent from government, have a pluralistic structure and operate in a pluralistic manner, have adequate resources, and have adequate powers of investigation.

The Australian Human Rights Commission was established as an independent statutory authority in 1986 through legislation that is now called the Australian Human Rights Commission Act 1986 (Cth). The legislation provides for a Commission constituted by a President, and six Commissioners that broadly reflect those human rights that have been the subject of federal legislation:

  • Australian Human Rights Commission Act 1986
  • Racial Discrimination Act 1975: Tim Soutphomesane
  • Sex Discrimination Act 1984: Liz Broderick
  • Disability Discrimination Act 1992: Graeme Innes
  • Age Discrimination Act 2004: Susan Ryan
  • Children’s Commissioner Megan Mitchell, special legislation passed this year.
  • Social Justice and Aboriginal and Torres Strait Islanders: Mick Gooda

Under our statutory mandate we have several functions:

  1. We accept and try to resolve by conciliation individual complaints of discrimination and human rights under the four major pieces of legislation. No complaint under these acts can go to a court, unless and until the matter has been considered by the Commission. We receive over 17,000 inquiries and complaints a year; 65% are conciliated, making a major contribution to the principle of equal access to justice. The process costs nothing to complainant or respondent, and very few cases ever go on to the Federal Courts.

  2. We intervene in court proceedings that involve human rights issues; we examine laws relating to certain rights and often propose improvements to those laws; (eg: Maloney case re Queensland liquor laws on Palm Island).

  3. We conduct research and propose new policy and standards which would promote the enjoyment of human rights (eg: Age discrimination research reports; treatment of women in the Australian Defence Force).

  4. We conduct national inquiries to bring special attention to issues of concern; (eg: Wrist X rays to determine the age of Indonesian children as asylum seekers).

  5. We provide education about human rights to improve awareness, understanding and respect for rights in our community – and I’ll show you a couple of examples of this later in my presentation.

 

We also participate in international bilateral programmes with China and Vietnam, and work with a number of UN institutions like the treaty bodies, Commission on the Status of Women, the UN Permanent Forum on Indigenous People and the Universal Periodic Review process in the UN Human Rights Council. Through these processes we often submit reports both with the Australian Government, and also separately, as an independent institution.

Racism and social exclusion

Returning to the specific issue of race discrimination, it has become clear that exclusion, discrimination and vilification on the grounds of race exists as an undeniable element of our otherwise successful multicultural society. The available research, along with our experience in handling complaints confirms this.[9]

In 2012-13 we have seen a dramatic increase of 59% in complaints based on racial vilification and hatred. This year we received 500 complaints under the Racial Discrimination Act, equating to nearly a quarter of all complaints received by the Commission.

Through our complaints service, the Commission is also aware that racial vilification on social media is a significant issue for many Australians. In comparison with the previous reporting year, in 2012-13 we saw:

  • An increase in the proportion of complaints under the RDA that concern racial hatred (increase from 14% – 19%)
  • A significant increase (19%) in the proportion of racial hatred complaints about internet material (from 17% - 41%).

There is also a disturbing rise in verbal abuse on public transport. You might recall the incident in which a French woman was abused for singing the “Marseilleilles”, and an ABC reporter, Jeremy Fernandez was racially abused while taking his daughter to school by bus. There have been many other similar incidents reported to us over the last few months.

At the Commission we have been especially concerned by the recent incident when a young girl made racial comments against Adam Goodes in a match to start the National Indigenous week in AFL football. The reason for our interest in the incident was not the racial slur in itself, but the fact that our Racism. It stops with me campaign was launched at that very match.

See video clip of the community announcement: Racism. It stops with me.

We watched with deepening concern as events unfolded; Adam Goodes dealt with the issue with dignity once he realized the age of the girl. Mr Eddy Maguire then apologised to Adam Goodes. What appeared to be a positive outcome, started to unravel when Mr Maguire made a further racial comment on radio. This was followed by yet another apology, leading to a week of public debate about the limits to freedom of speech and the value of the Race Discrimination Act that, in s 18C, prohibits racial vilification in public.

In 2011, the Australian Government committed to develop and implement a National Anti-Racism Strategy for Australia as part of its multicultural policy. One element of the Strategy is the education and public awareness campaign: “Racism. It stops with me”. It invites organisations to demonstrate their support for anti-racism by endorsing and promoting the campaign and undertaking specific activities over the next three years to support their stance against racism.

These videos provide an idea of the educational and advocacy work of the Commission.

  • The first video is part of our Racism. It stops with me campaign: hip-hop artist Brothablack deals with racism and bullying in schools; script and actors by students at the James Mitchell school in Sydney.
  • The second video clip is part of our BackMeUp Campaign, the aim being to encourage people not to be passive “by-standers”, but to support the victim of abuse if possible, without risking confrontation. BackMeUp 2012 winner - “Your Ears & Eyes Aren't Painted On.”

I encourage you all to go on to the Racism. It Stops with me website, and if you are part of a sporting organisation, club or business and you think they would be interested in supporting the campaign all the details of how to do so and what is involved is on the website

Conclusions: The importance of partnerships

To conclude, people of all religions, ethnic backgrounds, age and gender have so much to contribute, but this can only happen when there is a sense of inclusion and belonging, when people feel part of this country.

The existence of a strong civil society is fundamental for an inclusive society and active participation in Australian life, including combatting racism. Strong community engagement provides opportunity, builds wealth, promotes social harmony, and ensures greater equality and justice for all citizens.

Businesses are also key and necessary partners for social inclusion and over 150 corporations, NGOs, government departments and institutions have signed onto the partnership to tackle racism.

We must look at ways to come together and celebrate diversity. In the words of Desmond Tutu, “Differences are not intended to separate, to alienate. We are different precisely in order to realise our need of one another.”

[1] Australian Social Inclusion Board, ‘Principles for Social Inclusion - everyone’s job’, 2008. At http://www.socialinclusion.gov.au/resources/asib-publications (viewed 1 February 2012).
[2] Social Inclusion Unit, A Social Inclusion Strategy for Tasmania: A consultation paper 2008, Department of Premier and Cabinet 2008, p 4.
[3] This is based on a social exclusion monitor that was developed on 29 indicators across seven key life domains (including material resources, employment, education and skills, health and disability, social connection, community and personal safety).
[4] Zierscha, A.M., Gallahera, G., Bauma, F., Bentleya, M., (2011).Responding to racism: Insights on how racism can damage health from an urban study of Australian Aboriginal people. Social Science & Medicine, 73 (7): 1045–1053.
[5] Australian Human Rights Commission. (2010). In our own words - African Australians: A review of human rights and social inclusion issues . At http://www.humanrights.gov.au/our-own-words-african-australians-review-human-rights-and-social-inclusion-issues-2010 (viewed 13 August 2013).
[6] Australian Social Inclusion Board. Social inclusion in Australia: How Australia is faring. At http://www.socialinclusion.gov.au/resources/how-australia-is-faring (viewed 13 August 2013).
[7] UNESCO. Consultations of the Director-General with Member States. Social Inclusion, Social Transformations, Social Innovation: What role for UNESCO in 2014-2021? 23 November 2012.
[8] Hayes, A., Gray, M., & Edwards, B. (2008). Social inclusion: Origins, concepts and key themes. Canberra: Australian Government. At www.socialinclusion.gov.au/Resources/Pages/Resources.aspx (viewed 15 August 2013).
[9] A study conducted by Dunn and colleagues in 2008 found that around one in five Australians say they have experienced race-hate talk, such as verbal abuse, racial slurs or name-calling, and more than one in 20 say they have been physically attacked because of their race. See K Dunn, Challenging Racism: The Anti-Racism Research Project. At: http:// www.uws.edu.au/social_sciences/soss/research/challenging_racism/findings_by_region (viewed 15 August 2013).

Professor Gillian Triggs, President