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 |
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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.
