Australian Lawyers Alliance Conference
Graeme Innes AM - Human Rights Commissioner
20 March 2009
I begin by acknowledging the traditional owners of the land on which we meet today.
As lawyers who work every day with ordinary people, you will all have first hand experience of the value that we, in Australia, place on human rights. You will also be acutely aware of the significant gaps in human rights protection in Australia.
I was impressed to read on the Australian Lawyers Alliance website that fundamental to your organisation is the 'protection and promotion of justice, freedom and the rights of individuals'. Your organisational aims are all about human rights:
We promote access to justice and equality before the law for all individuals regardless of their wealth, position, gender, age, race or religious belief. We oppose oppression, and discrimination, and support democratic systems of government, and an independent judiciary.
In Australia we're right in the middle of exciting times for human rights protection. The National Human Rights Consultation is underway. Already, on talkback radio, we've heard about the rights to sleep-in on Sundays, to wear thongs anywhere I please, and to climb my neighbours fence to get my ball back.
More seriously, though, this week, we've had the Community Roundtable event in Sydney, attended by staff and members of the Australian Lawyers Alliance. It was a colourful and lively event. There were debates about whether Australia should have a Human Rights Act, and debates about the difficult job of balancing different sets of rights. Ordinary people came and told the Consultation Committee how they thought that rights should be protected in Australia.
One of the great benefits of this consultation is the conversations about human rights being sparked across Australia. We need to keep talking about our rights, and how we want to see them protected.
I'm not going to give you a lecture today on the detail of Australia's current mechanisms for protecting human rights, and its inadequacies. Rather, I'll start by describing what the government's 'Choose Australia' website says about human rights. This website is designed for people considering migrating to Australia. It provides a list of what it calls 'basic rights that all Australian's enjoy', and then outlines five 'fundamental freedoms' which it says 'all Australians are entitled' to, including freedom of speech, association, expression, assembly, religion and movement'.
Now it's clearly true that Australia is a great place to live: for most of us, most of the time. Most of us do enjoy these freedoms.
But none of these freedoms are adequately protected in Australian law. As you will know, the Australian Constitution provides very limited protection of human rights. And while Australia remains the only liberal democracy without a Human Rights Act, all Australians remain vulnerable to breaches of their human rights.
Let's take the example of freedom of speech. Most Australians would be astonished to know there is no national law that protects our freedom of speech in Australia. While our Constitution protects freedom of political communication as an 'implied right', this protection doesn't extend to other forms of communication.
And freedom of speech is not always respected in our laws. For example, in its 2005 package of anti-terror laws, the Commonwealth government introduced a range of sedition laws. An Australian Law Reform Commission review heard widespread concern, that these laws had the potential to overreach, and inhibit, freedom of speech, and freedom of association. Consequently, it recommended there be a 'bright line between protected freedom of expression - even when exercised in a challenging or unpopular manner - and the reach of the criminal law'. The federal government has announced that it intends to implement all of the Australian Law Reform Commission's recommendations.
In Townsville, Queensland, a man was arrested and fined after proclaiming his views on a street corner. He spoke loudly for 15 to 20 minutes on a range of subjects, including bills of rights, freedom of speech and mining and land rights. He ended up in custody after not paying his fine. He complained to the United Nations, who found that his freedom of expression had been unreasonably restricted.
Freedom of expression has also been limited by NSW regulations, which for the week-long World Youth Day celebration, gave police the power to control the behaviour of people who might annoy the Pope and other Catholics. This regulation clearly restricted the right of people, who wanted the freedom to express their views about the attitude of the Catholic Church to issues like pre-marital sex, and homosexual relationships.
Another example of a restriction of freedom of expression can be drawn from the experience of Commonwealth public servants. In their capacity as private citizens, these public servants wanted to participate in the day of action, protesting proposed changes to workplace laws - a classic example of freedom of association and expression. Yet senior public officials thought it was appropriate to restrict their capacity to take leave from work, to which they were entitled.
These last two examples do show the common law at work - the outcome of court cases in each of these examples enabled these rights to be exercised. However, We can do better, in creating a rights respecting culture, to prevent these human rights violations from occurring in the first place.
Australia needs a Human Rights Act.
A Human Rights Act would be an important statement of the human rights that should be promoted and protected in Australia. It would provide a framework for how human rights should be protected. It would require Parliament, the Executive, and the courts, to all have greater regard for human rights, as they engage in the business of government. It would make a difference to the lives of ordinary Australians.
One of the main benefits of a Human Rights Act, is that it would require Parliament to assess whether new laws infringe basic rights, and fundamental freedoms. This would lead to greater transparency, and arm the public with better information about parliament's decision-making processes. Faced with pressure from a well-informed public, parliament may not have passed the sedition laws that I described earlier, in a form that was so restrictive of freedom of speech.
A Human Rights Act would also require the Executive government to consider the human rights impact of all policy proposals. And where possible, courts would be required to interpret legislation consistently with human rights.
Of course, not all rights and freedoms are absolute. International human rights law contemplates restrictions of certain rights and freedoms, as long as they are explicitly included in our laws, and they are necessary to protect national security, public order, public health, morals, or the rights and freedoms of others. For example, if there is a national security crisis, it might be reasonable to restrict freedom of movement. It's certainly reasonable to restrict speech that incites racial hatred, or exhorts others to violence.
The problem, as the stories of laws I have told illustrate, is that our parliaments are currently not required to consider whether they are restricting human rights when they make these laws. A Human Rights Act would change this.
I want to return to the situation of ordinary people in Australia. Experience from other jurisdictions tells us that a Human Rights Act will have a positive impact on the ability of ordinary people to assert their rights. And they won't always need to go to court to do so. There are numerous examples from the United Kingdom, of situations where ordinary people have employed human rights language in discussions with government authorities about their treatment.
Let's start with the story of a woman who fled domestic violence with her children. The woman's husband attempted to track the family down, and they moved towns whenever he discovered their whereabouts. The family eventually arrived in London, and were referred to the local social services department. Social workers told the mother that she was an 'unfit' parent, and that she had made the family intentionally homeless. They said that her children had to be placed into foster care. An advice worker helped the mother to challenge this claim, on the basis of the right to respect for family life. As a result, the family were told that they could remain together, and that the social services department would provide the deposit, if they could secure private rented accommodation.
Many other UK examples demonstrate the impact of a Human Rights Act, in protecting the rights of older people, and people with disability. For example, a consultant came across an older woman on a hospital ward in London, who was crying out in distress. The woman was in a wheelchair, and when the consultant lifted up her blanket, she discovered that the woman had been strapped in, and that this was why she was so upset. Staff explained that they had fastened her into the wheelchair in order to stop her walking around, because they were fearful she might fall over and hurt herself. The consultant told staff that while their concerns were understandable, strapping her into a wheelchair for long periods was an inappropriate response, because her human rights had not been taken into account. She pointed out that this could be considered degrading treatment, given the impact on the woman. Staff quickly agreed to unstrap her and, after she was assessed by a physiotherapist, they were encouraged to support her to improve her mobility.
In another example, a physical disabilities team at a local authority had a policy of providing support to service users, who wanted to participate in social activities. A gay man asked if a support worker could accompany him to a gay pub. His request was denied, even though other heterosexual service users were regularly supported to attend pubs and clubs of their choice. While receiving human rights training, the man's advocate realised that the man could invoke his right to respect for private life, and his right not to be discriminated against on grounds of sexual orientation, to challenge this decision.
Moving closer to home, let's take the example of a recent Victorian case, regarding the rights of people with a disability. The Victorian government had refused to accept that autism was a disability, for the purposes of providing special educational services. A mother with an autistic child, who had been deprived of these services, took her case to court. A fortnight before the case was to be heard, the government conceded its mistake, and provided extra funding for autistic children in school.
All of these examples show how a Human Rights Act can make a difference to the lives of vulnerable people, who are unfairly disadvantaged. What these examples demonstrate is that a Human Rights Act can lead to cultural change, and human rights breaches should be less frequent as a result. Government authorities will be required to make sure that their policies and procedures pass the human rights test. Public servants working in government departments should have human rights training.
However, most importantly, a Human Rights Act will help ordinary people, and their advocates, to develop a human rights language, to use when talking with government authorities, about any aspect of their treatment that they feel is unfair.
International human rights law requires that there is an effective remedy, when human rights are breached. Currently, all too often, there is no effective remedy. The Australian Human Rights Commission currently receives human rights complaints: where the Commission is unable to conciliate the complaint, and finds that there is a human rights breach, we write a report that is tabled in Parliament. However, our recommendations are not enforceable.
These reports have found breaches of human rights in a variety of situations. Some of them, including one tabled in Parliament just this week, are about the treatment of people held in immigration detention.
An Australian Human Rights Act should give a person who believes his or her rights have been breached by the actions of a public authority, the right to take legal action against the public authority. And if a breach of human rights is found, something should be done about it. The human rights breach should be stopped, and there should be a right to seek reparations, including compensation, where necessary and appropriate.
In Australia, we can do better. We should no longer be in a situation where there is no effective remedy when human rights are breached.
I know that there are divergent, and sometimes heated, views about the best way to protect human rights in Australia. Many of you will be aware that The Australian newspaper is running a campaign against a Human Rights Act for Australia.
The most commonly repeated refrain of those who oppose a Human Rights Act is that it would take power away from our elected representatives, and give it to unelected judges. This is wrong, and a classic weapon of mass distraction.
A human rights act is fundamentally democratic. It would not, as many commentators would have you believe, transfer power to judges. The Human Rights Act would be an ordinary piece of legislation. The last word would always stay with Parliament.
A Human Rights Act would not give courts the power to strike down legislation. Rather, in the situation where a law could not be read consistently with human rights, courts may make a 'declaration of incompatibility'. Parliament would have the final say, regarding whether to amend the law to resolve the incompatibility. However, it may be required to justify a decision not to amend a law that breaches human rights.
Through this dialogue process, human rights would play a more prominent role in public debate. A Human Rights Act, far from transferring decision-making from Parliament to the Judiciary, would actually enhance democracy, by requiring Parliament to openly consider the human rights impacts of legislation. The public would have better access to information about decision-making processes, enabling voters to make informed choices. This would make our elected representatives more accountable.
A Human Rights Act would simply cement, in Australian law, the basic standards of dignity, equality and fairness, that the government has already agreed to uphold, through ratifying the major international human rights treaties.
I'd like to finish today, by encouraging you all to get involved in the debate. The Australian Lawyers Alliance has played an important role, in a coalition of organisations supporting a Human Rights Act for Australia, the Australian Human Rights Group.
However, don't leave it to the Alliance. We all have an important role to play, in making sure that human rights are better protected in Australia. If you, or someone you know, has a parent in an aged care facility; a child with a disability; a friend or relative with a mental health problem, a teenage child who gets into a scrape with the police, or a family threatened with separation because they couldn't find appropriate housing - then human rights matter to you.
All Australians should have access to appropriate education and health care. We should all have access to water, food and adequate housing. Our children should feel safe at school. People living in aged care homes should be treated in a way that respects their dignity. Everyone in a wheelchair should be able to use public transport, and enter the same buildings as everyone else.
I encourage you to make a submission to the National Consultation. Tell them about what human rights matter to you, and how you want them protected. Tell the stories that you know of ordinary Australians. Show the Committee the damaging impact of inadequate human rights protections. Most importantly, offer the Committee solutions. Show them how a Human Rights Act would make a difference. Tell them about the kind of Australia in which you would be proud to live.
I'm encouraging everyone I know to participate in this important national discussion. I urge you to do the same.
Thanks for the chance to speak with you today.
