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Wanted: human rights in Australia

John von Doussa

I would like to acknowledge the Gadigal people of the Eora nation, the traditional owners of the land on which we meet today, and pay respect to their elders.

An evolutionary process - the first step

On 10 December 1948, Dr HV Evatt, then President of the United Nations General Assembly and Australian Minister for External Affairs, enthusiastically proclaimed the official adoption of the Universal Declaration of Human Rights as a 'step forward in a great evolutionary process'.1 Almost sixty years later, Human Rights Day is an opportunity to reflect on Australia's human rights journey: the steps forward, the steps backwards and the steps that still need to be taken.

At the time the Universal Declaration of Human Rights was signed the White Australia policy prevailed; Indigenous Australians were denied the vote; sex and disability discrimination were routine; and what Oscar Wilde called 'the love that dare not speak its name' was a criminal offence.

Human Rights Day

Today, we can be justifiably proud of the steps forward in Australia's human rights journey. But our successes must not be used to wallpaper over our failures. The fact that Australia has a comparatively strong human rights record does not diminish our responsibility to address the situation of those for whom the everyday enjoyment of human rights is not yet a reality, or lessen the importance of making sure new laws and policies comply with our human rights obligations.

"In 1948 Australia made its first ebullient step in its human rights journey. Today, in a climate of fear and insecurity, we must regain this enthusiasm for human rights."

As we venerate the stability and success of our democracy, we must also own another history, a history of systematic discrimination and dispossession of Indigenous Australians. Recognising this history is vital to create a nation which has the character, compassion, and understanding to deal with the legacies of injustice. Today, the gross disparity between the health status of Indigenous and non-Indigenous Australians is undisputed, unacceptable and a matter of national shame. And while the findings and recommendations of the 1991 Royal Commission into Aboriginal Deaths in Custody should be old news, the tragic death of Mulrunji on Palm Island illustrates that there are still systematic problems in the policing of Indigenous communities.

Some commentators claim that post September 11 the age of human rights has come and gone, yet it is precisely now, at a time of fear and insecurity, that we must strengthen our resolve to protect and preserve human rights. To quote the outgoing United Nations Secretary-General Kofi Annan: Only by placing counter-terrorism within a rule of law framework can we safeguard the internationally valued standard that outlaws terrorism, reduce conditions that may generate cycles of terrorist violence, and address grievances and resentment that may be conducive to terrorist recruitment. To compromise on the protection of human rights would be to hand terrorists a victory they can not achieve on their own.2

Yet in a climate of insecurity Australia's commitment to human rights is in danger of being fundamentally - and unnecessarily - compromised. A persistent feature of Australia's counter-terrorism laws has been the expansion of executive power to make decisions which have the potential to infringe fundamental human rights without corresponding checks and balances. Too often simple safeguards - like independent merits review and review under the Administrative Decisions Judicial Review Act - have been left out.

The ongoing detention of David Hicks in conditions which clearly violate the right to a fair trial and the prohibition on cruel, inhuman or degrading treatment is grossly unfair. As the years march on - five and counting - the Australian government's continuing lack of protest and inaction is culpable.

Last week, another long term detainee, Mohammed Sagar, an Iraqi refugee detained offshore on Nauru for five years, was finally resettled to a Scandinavian country. Australia's treatment of asylum seekers reflects a disturbing disregard for both the letter and the spirit of Australia's international human rights obligations. Despite some recent reforms to the Australia's treatment of asylum seekers the rights of asylum seekers are still fragile property. The introduction of the Migration Amendment (Designated Unauthorised Arrivals) Bill 2006 to process all unauthorised boat arrivals offshore was a backward step in Australia's human rights journey. The Bill's ultimate withdrawal was undoubtedly a win for human rights and a testament to the powerful advocacy of human rights defenders, many of whom are sitting in this room today.

Yet the legal framework that established the original Pacific Solution is still in place. We still have a situation where people who arrive on excised Australian territory can be taken to Nauru and left there indefinitely, without recourse to legal advice, to Australian courts or to any remedy at all. The High Court has just held that the Migration Act does not require the government to prove that the change in a country's circumstances is 'substantial, durable or effective' before they refuse a TPV holder's claim for ongoing protection.

This decision confirms the cruel uncertainty facing refugees holding temporary protection visas and highlights the need for a more humane policy towards refugees living in Australia. The UNHCR said that while the High Court's judgments asserted the primacy of domestic legislation, the legislation fails to "reflect the spirit of the legal framework for refugee protection envisaged in the 1951 Convention relating to the Status of Refugees".3 Good human rights outcomes depend on more than technical compliance with specific terms of human rights conventions and much more than hiding behind domestic legislation that does not reflect international obligations.

Good human rights outcomes depend on a willingness by government to act in a way that is consistent with the overall scheme and objectives of those conventions. We are always keen to claim the spirit of a 'fair go' as an enduring characteristic of Australian society, yet too often our laws and policies tell a different story.

Earlier this year HREOC launched a national inquiry into the discrimination faced by same sex couples in relation to financial and work-related entitlements. The submissions HREOC has received illustrate how laws treat gay and lesbian couples as second class citizens, not deserving of the same rights as heterosexual couples. As one person put it: 'Current legislation gives a clear message from our parliamentarians that discrimination against homosexuals and same sex couples is acceptable'.4

An important question that the same sex inquiry raises is how did laws which have a clearly discriminatory effect on the day to day lives of many Australians get passed in the first place? What we need are mechanisms which integrate human rights principles into the law and policy making process.

Some states are taking action to ensure this happens. This year Victoria followed the lead of the ACT in enacting a statutory Charter of Rights. Under the Victorian Charter submissions to Cabinet about new laws or major policies must be accompanied by a Human Rights Impact Statement, and new bills must be accompanied by a human rights compatibility statement. If parliament enacts laws which are inconsistent with human rights it must publicly justify its actions. These provisions in no way impinge on the sovereignty of parliament, yet in my view they represent an important step forward for human rights because - in sharp contrast to present federal processes - they explicitly recognise that parliament has a responsibility to uphold human rights standards.

The evolutionary process - the next step

The 2006 report card on Australia's human rights journey has some highlights; some disappointments; and some areas for future work. In June 2006, after 24 years of negotiations, the UN Human Rights Council approved the Declaration on the Rights of Indigenous Peoples only to see the General Assembly delay consideration of the Declaration for up to 12 months. This decision undermines the status of the new Human Rights Council which is already struggling to establish credibility as an effective international protector of human rights.

The prospects of the freshly drafted Convention on the Rights of Persons with Disabilities are more promising and hopefully Australia will lead the way and become one of the Convention's first signatories.

We live in a time where we face the challenge of balancing national security and human rights without any clear guidelines about how to get the balance right; when the recommendations of parliamentary committees are routinely ignored; and, when, too often, we see laws which fail the human rights test of fair treatment on our statute books. Yet even good laws have their limits.

The events at Cronulla this time last year also demonstrated that concerted ongoing action needs to be taken to overcome stereotypes and prejudices aimed at Arab and Muslim people in our community. HREOC has undertaken a range of forums and community projects throughout the year to develop strategies to these issues. While I believe we are making progress, we need political, community and media leadership to promote the principles of multiculturalism and social inclusion.

In 1948 Australia made its first ebullient step in its human rights journey. Today, in a climate of fear and insecurity, we must regain this enthusiasm for human rights. Now is the time for Australia to have a serious debate about how to improve human rights protection in Australia. And to the winners of the Human Rights Day awards, who are so tireless in their pursuit of human rights, I say, very simply, don't stop.


This is the text of the Human Rights Day Address by the Hon John von Doussa QC, President, Human Rights and Equal Opportunity Commission, on 7 December 2006 on the occasion of the Human Rights Medal and Awards Ceremony at the Sheraton on the Park, Sydney. The article is reproduced in accordance with the Commission's copyright provisions.


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