Human Rights Day Address
Commission – General
Human
Rights Day Address
By The Hon. John von Doussa QC, President, Human Rights and Equal Opportunity Commission
7 December 2006
Human Rights Medal and Awards Ceremony, Sheraton on the Park, Sydney
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.
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.
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.
[1] As quoted in Annemarie Deverereux, 2005, Australia
and the Birth of the International Bill of Human Rights 1946-1966, Federation Press, p.1
[2] Report of the Secretary-General, ‘Uniting Against Terrorism:
Recommendations for a Global Counter-Terrorism Strategy, 27 April 2006 available
online at http://www.un.org/unitingagainstterrorism/contents.htm
[3] See UNHCR media release, ‘UNHCR concerned about confirmation of TPV system
by High Court’, 20 November 2006 available at www.unhrc.org.au/
[4] Jennifer Calahan, Submission 239.
