Dimensions of diversity in Australian civil society

Dimensions of diversity in Australian
civil society

Launch of City of Greater Dandenong Diversity Action Plan 31 August 1999 Chris Sidoti Human Rights Commissioner and Acting Disability Discrimination Commissioner

It
is a particular pleasure for me to have been invited here today to launch
the City of Dandenong's Diversity Action Plan. Allow me a few moments
to explain why.

If
you look at the legislation which defines my job as Human Rights Commissioner,
you will see that it deals with human rights in terms of rights and freedoms
recognised in international conventions and declarations, negotiated between
the governments of the world in New York and Geneva.

As
well as defining human rights in terms of international treaties and declarations,
the Human Rights and Equal Opportunity Commission Act might also appear
to deal with the implementation of these human rights mainly as matters
of national legislation and policy. The Commission has functions of reporting
to the Attorney-General and the Parliament on laws which should be made
and actions taken by the Commonwealth, and on consistency of proposed
laws with human rights. It also has functions of inquiring into and reporting
on complaints about acts and practices of the Commonwealth itself.

(You
may be relieved to hear that I do not intend to go on to detail the content
of those conventions and declarations or the functions and powers of the
Commission here. Speeches reciting these details at great length have
been given by members of the Commission often enough in the past to be
the subject of merciless parody by our staff. Details of human rights
conventions read well on paper but do not always make for an engaging
spoken presentation.

There
is, however, a wide and increasing range of this material available through
the Commission's World Wide Web site which I encourage you to have a look
at, including what I think is an excellent section on "human rights explained".
)

These
dimensions of human rights are clearly important.

There
is great value in the concept of human rights as internationally agreed
common standards for all humanity; a source of inspiration for people
whether on the banks of the Yarra or the Yangtze or the Yukon.

There
is great importance in actions at the national level, by governments and
parliaments, to promote and protect human rights and to provide effective
remedies where human rights violations have occurred.

That,
of course, is why the Commission in its report on the Stolen Generation
placed such emphasis on the need for leadership by the national government
in recognising and redressing the wrongs which had been done to Aboriginal
children and their families through discriminatory policies and practices
of removal.

That
is why we have welcomed the statement of regret endorsed by the Federal
Parliament last week, and why we have also emphasised that there remains
further to go in what Sir William Deane has called a "retreat from injustice"
in relations between this nation and its first peoples: a road from recognition,
to regret or remorse, to redress and restitution, to respect and reconciliation.

I do
not mean here today, and I believe my colleagues on the Commission do
not wish, to enter a debate about the adequacy of one form of words or
another in this context. My point is that human rights are not, or should
not be, simply a matter of words.

Human
rights do not have their main significance in the words set out in declarations
and conventions, or in legal or diplomatic or academic interpretation
and construction of those words. I think I am entitled to say that, as
a lawyer and as someone who has spent a great deal of time writing and
speaking about human rights.

The
important thing is whether human rights -  the freedom and equality
which all the pages of conventions and declarations seek to describe -
are a reality in the daily lives of a nation's people.

And
with all due acknowledgement to the importance of international standards
and national laws and leadership, this is not something which can somehow
be delivered from Geneva or Canberra or Sydney.

Prompted
by the collapse of communism in Eastern Europe and discontent with ideas
of market forces as the means for resolving all social and economic issues,
there has been renewed interest among political and social commentators
in recent years in concepts of community and civil society.

In
1997 Martin Krygier took civil society as one of the major themes for
his Boyer Lectures series on ABC radio. (The text of his lectures can
be found with a bit of searching on the ABC internet site. Unfortunately
Eva Cox's series on "A truly civil society" from 1995 is not similarly
accessible.) He had many interesting things to say, from a distinguished
position within Australian conservative political thinking.

In
particular I think Professor Krygier's comments have not lost any of their
relevance on the need for us all, conservatives particularly included,
to take seriously the history of injustice inflicted on Aboriginal Australians
if we are to be able to take proper pride in any of the achievements of
our nation.

I refer
to Krygier's lecture on civil society here, though, because of some remarks
he quoted from the journalist Robert Haupt, who reported with dismay in
1993 on Boris Yeltsin's increasingly autocratic rule (even then) and his
shelling of the Russian Parliament House:

Here
[in Moscow], all the boring things of life are missing. There are no
Premiers' Conferences, no shire councils, no chambers of commerce, no
solicitors, accountants, real estate agents, no double-entry bookkeeping.
There are soldiers everywhere, but very few police, and none you could
rely on for help in a sticky situation. There's no head of State, no
Scout movement, no civic progress associations and few charitable groups.

All
of this, the texture of civic order, strikes an Australian as so natural
and ordinary that to investigate its origins seems superfluous . Yet
the worth of something can generally be better seen from its absence
than its presence.

I hope
you will not be offended by local government being grouped here among
the "boring things of life" - noting rather the importance acknowledged
for this as part of the  "texture of civic order" and as part of
a political achievement which the author wished to present as more substantial
than that of V.I. Lenin.

The
Human Rights and Equal Opportunity Commission Act does give some recognition
to the fact that not everything important or interesting happens within,
or emanates from, central government. It states that the Commission may
work with non-government organisations, and also that the Commission may
conduct human rights education programs.

There
is more to be said, though, than these provisions might indicate.

For
one thing, the concept of human rights education might be taken - and
perhaps too often is taken - as presupposing a model where the Commission
or other federal or State government agencies are the high priests of
knowledge in which others must be instructed. I don't think human rights
is much like that, or that human rights education can be, or need be,
only like that.

After
all, human rights is about how we all live together in societies and communities,
and there is plenty of room and need to learn from each other, not only
from the officially appointed keepers of knowledge.

To
take an example again from indigenous matters, the most popular document
currently on the Commission's internet site is that of stories from members
of the stolen generation, rather than any of the Commission's own productions. 
I should acknowledge though that this looks like being overtaken by the
report of the inquiry on pregnancy discrimination, which was issued last
week under the Sex Discrimination Act.

One
of the things we have tried to do through the Commission's national inquiries
is to provide a forum for a range of views and voices, particularly for
the voices of people who are disadvantaged and have difficulty in being
heard.

The
Disability Discrimination Act, which I presently have a major responsibility
for administering as Acting Disability Discrimination Commissioner, provides
more structured opportunities, perhaps, than the other legislation administered
by the Commission for exploring these dimensions of participation in human
rights decisions and work. 

Work
under this Act has also been informed, particularly over the last year
or so, by my desire to improve the functioning of the Commission as a
national organisation for all Australia rather than only as a Sydney organisation,
and to conduct human right work as a public participatory process rather
than as the sole preserve of Sydney and Canberra policy elites or as the
private preserve of parties to complaints.

We
have begun pursuing an open and participatory approach to investigation
of complaints in appropriate cases under the DDA.

The
process of development of standards, which the DDA provides for, has been
conducted as a process of negotiation between interested parties.

The
process of consideration of applications for temporary exemption from
the DDA is easy to perceive as a negative process compared to the positive
process of standard setting. In fact, at least as administered by the
Commission so far, I think it is fair to see the exemptions process as
delivering positive progress in implementing the objects of the DDA, faster
than the standards processes which in all cases are yet to bear regulatory
fruit, and with broad opportunities for public participation before the
Commission makes a decision. The part which the Commission played in achieving
commitment to accessible trams for Melbourne is I think a case in point.

I have
no embarrassment in saying that any organisation which wishes to consider
means of getting recognition for its compliance efforts under the DDA
should feel free to discuss with my staff the possibilities for an exemption
application.

We
are just finishing receiving comments on another approach to recognition
of mechanisms beyond those of the Commission itself for achieving equal
opportunity and access.

Under
the DDA I have a power, and therefore as I understand the law an enforceable
duty, to decline to deal with a complaint where I think that the matter
has already been adequately dealt with or where there is another more
appropriate remedy reasonably available. I put out for consultation a
policy proposal on decision making in this area as it affects local government
decisions on access to premises, to see if there are mechanisms in place
or under development around Australia which should be given recognition
by use of the power to decline complaints.

This
was prompted by the decision of the Federal Court in the Coffs Harbour
City Council case, which seemed to indicate that councils would be liable
for permitting discrimination, even if they made reasonable decisions,
if the Commission or the Court subsequently disagreed with that decision.
That did not seem to us to be a sustainable position, even for whatever
interim period of months or years might elapse before a reasonably comprehensive
regulatory solution might be achieved through revision of the Building
Code of Australia and adoption of the results of this revision through
a disability standard under the DDA.

In
looking for local processes to recognise and endorse, we are interested
not so much in substantive standards defining access competing with those
already available, as in processes for making decisions in a way which
provides for participation of people with disabilities.

At
this point, there has been some support for the approach proposed through
use of the power to decline complaints. There has been some concern that
this approach undermines the effectiveness of the DDA. I should note though
that submissions along these lines generally seem to argue both that approaches
to date have not been very effective, and that no departure from these
approaches should be contemplated ...

There
has also been some concern that this approach might undermine uniformity
to be achieved through the Building Code of Australia regulatory process.
My approach to this is basically that we should of course avoid undermining
a well considered, fair and uniform regulatory solution when such a solution
has been achieved.

Meanwhile
the Commission has its own statutory responsibilities, towards people
with disabilities and also towards industry and other affected parties
who appear to be seeking some measure of certainty of rights and responsibilities
now, not some time in the indefinite future. I can see no reasonable basis
for objections to consulting on a consistent approach to decisions which
I am otherwise entitled and compelled to take unilaterally on a case by
case basis.

A less
contentious area of compliance mechanisms under the DDA is that of action
plans. The take up of the voluntary action plan concept by local government
bodies around Australia has been I think one of the real success stories
of the Act. As can be seen from the register of action plans available
on the Commission's internet site, the performance of local government
compares very favorably with the performance of the Commonwealth's own
departments and agencies in this respect.

The
action plan concept was not original for the DDA, being derived from the
terms of, and experience with, Commonwealth government Access and Equity
policy structure. Despite its title, Access and Equity policy in the Commonwealth
has never been a comprehensive framework for access and equity in Australian
society with all its dimensions of diversity, rather than an offshoot
of the National Agenda for a Multicultural Society.

This,
to return to my opening statement, is one of the reasons it is a pleasure
to be here to launch the City of Dandenong diversity plan. Because it
uses the DDA action plan structure, and insights gained in experience
in accommodating disability, to deal with issues of service and citizenship
in a diverse community more generally.

Here,
I think, there is a real recognition that it is not adequate for democratic
institutions in Australia to act only as if there are separate constituencies
of minorities - people with disabilities, gay and lesbian, racial, ethnic
and religious, the "51% minority" of women - to be accounted for at the
margins of the "mainstream". No: our communities, our own individual identities,
include diversity on a number of planes or levels.

To
quote a speech delivered by my predecessor, the late Elizabeth Hastings:

A
community which includes people with a disability is not some experiment
of over-bold social engineers; it is the real community we have now,
waiting to be acknowledged. Accessibility is not an experiment we can
or should defer, while we procrastinate over whether this or that is
really the right time or the right way to try it.

That
brings me to the other positive feature I wish to mention of the Diversity
Plan being launched today. Unfortunately some action plans are long on
planing and short on action. I do not believe that this is or will be
such a plan. There is, I think, a strong focus on implementation, evaluation
and accountability.

So
let me not be numbered with the procrastinators:  I declare the City
of Greater Dandenong's Diversity Plan launched.