Catherine Branson QC
President, Australian Human Rights Commission
Hobart, 10 December 2011
Thank you, Mr Legge, for your kind introduction.
I wish to start today by acknowledging the traditional owners of the land on which we are meeting. On behalf of the Australian Human Rights Commission, I pay my respects to their elders past and present.
I wish to also extend my thanks to the Australian Red Cross and in particular, Robert Tickner CEO, for extending the invitation for me to speak at this national conference. It is a privilege and an honour to join with colleagues and friends on such a momentous day.
Today is International Human Rights Day – the day we mark the United Nations General Assembly’s adoption and proclamation, on 10 December 1948, of the Universal Declaration of Human Rights. A founding member of the United Nations, Australia helped lead the development of this Declaration, the preamble to which underpins almost all of my thinking about human rights. It states, as many of you will know :
‘…recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world’.
Sixty years on, these words still offer, in my view, one of the best explanations of human rights aspirations on a global scale. However, as the Red Cross reflects on the challenges that lie ahead – and on the people, partners and places that will help meet these challenges – this simple statement is just as likely to resonate with everyone here today.
That is because, whether as part of the Red Cross response to major disasters both overseas and at home; whether involved in briefing members of the Australian Defence Force on the Geneva Conventions; or through the organisation’s many programs which support local communities, you are part of a movement that celebrates that inherent dignity. You are a part of a movement that, since emerging from the muddied horror of 19th century battle, has reached out and offered its assistance to all members of that human family.
On this International Human Rights Day, then, I’d like to examine some of the parallels between the values reflected in internationally recognised human rights and the values that inform the work of the Red Cross – work that has positive consequences for the human rights, as well as the humanitarian needs, of those it seeks to assist.
Red Cross and Human Rights
What do we mean, though, when we speak of human rights? Certainly, many Australians are not especially comfortable with the language of rights, despite our apparent ease with ideas which correlate closely, such as the famous Aussie ‘fair go’. Rather, we tend to think of human rights as relevant only in other parts of the world.
This may in part be due to the fact that, like the Red Cross mandate, contemporary human rights law sprang to life out of suffering on an international level – this time, out of condemnation of the atrocities of World War Two.
In the years that followed, nations united to declare that never again should humanity be denied in such systemic ways. A range of formal instruments were developed to set out the responsibilities of each State to protect, respect and promote fundamental human rights, the first of these, the Declaration, overseen by Australian Dr HV Evatt, President of the UN General Assembly at the time. These instruments influenced understandings about the way in which people ought, and ought not, to be treated – by other individuals, by government, by the community at large.
As big picture as this may sound, however, human rights simply reflect those things necessary of us to enjoy the human dignity we all hope to be afforded. Despite the fact that most Australians may be lucky enough to take them for granted, rights such as the rights to vote or to education; through to protection from torture, are the basic standards by which we measure fairness and equality – the expectations we share for ourselves and our families.
Fundamental and often intuitive, equivalent values are evident in cultures throughout the story of human civilisation, from Buddhist teachings to Islamic and Jewish scripture. As Boutros Boutros Ghali, former UN Secretary-General, has explained – ‘our contemporary human rights system is heir to demands for human dignity throughout history and across cultures’. The desire to articulate how we ought to treat each other, then, seems to be nothing new.
How, though, does this articulation differ from the basis of the Red Cross mandate – that set of rules which seeks to limit the effects of armed conflict; which recognises human need with complete impartiality?
It is important to acknowledge, after all, that the recognition of human rights and humanitarian aims arise from different starting points. Need, it can be argued, is reasonably objective and uncontroversial, while rights are sometimes less so – occasionally competing with each other; and creating a corresponding duty that government and other authorities are not always ready to meet.
Conversely, need arises out of circumstance and, as a result, can fluctuate. Rights are continuous, although we tend to recognise them only when they risk being violated.
I believe, however, that both are motivated by similar objectives – that the ICRC Principles of Humanity, Neutrality, Impartiality, Independence, Voluntary Service, Unity and Universality are echoed in the ambition of human rights to promote freedom from discrimination and quality of life for every person.
Equally, while both movements have a global and often quite theoretical application, each also works to achieve these objectives on a pragmatic scale. Each is interested in improving individual lives and in systemic reform. Each aims to bridge the terrain between international law and the face of everyday humanity – recognising, for example, those spheres in which the rights, as well as the very real needs, of particular sectors of society are not always being met.
Asylum Seekers and Immigration Detention
One such area is immigration, including asylum seeker, policy – one in which many of you may have been involved – from tracing and restoring family links; monitoring conditions in detention as Humanitarian Observers; or facilitating support for new arrivals living in the community.
I cannot stress enough the importance of this work. Mandatory, indefinite, and with no provision for court challenge; we have one of the strictest immigration detention regimes in the Western world. Earlier this year there were almost 7000 people held under this regime. Given we know the devastating impact of detention on mental health, this is an enormous number of people with existing vulnerabilities at risk of further harm. In fact, the past 18 months has seen very high rates of self-harm in immigration detention facilities and five apparent suicides.
Obviously the traditional Red Cross impetus in all this is humanitarian need. This is why, as well as the work mentioned above, the Red Cross advocates behind the scenes for better treatment of people in detention.
The Commission’s starting point is a different one; it is to ask whether Australia is meeting its international human rights obligations. Individuals can raise concerns about their treatment in detention through our complaints process. That the human rights of people in immigration detention are vulnerable is demonstrated by the very significant increase in the number of complaints that the Commission has received over the past year.
Sometimes we can help resolve issues, for example in the case of the individual with a prosthetic leg, who had been placed in inappropriate accommodation, and who, following our investigation, was placed in more suitable housing. Unfortunately in many cases we are unable to resolve complaints from people in detention, particularly when the complaints are about circumstances of prolonged or indefinite detention. In these cases, if I find that a person’s human rights have been breached I prepare a report that is tabled in Federal Parliament.
More broadly, we advocate for reform in the public arena – conducting and participating in inquiries, writing reports about visits to immigration detention facilities, engaging with the media and intervening in legal proceedings, such as the recent High Court case regarding the transfer of asylum seekers to Malaysia.
In all this, the Commission has repeatedly called for an end to mandatory, prolonged and indefinite immigration detention. As well as our concern about the this system’s failure to properly recognise the right not to be arbitrarily detained, detention facilities are often in remote, harsh environments; prison-like, with high-wire fences and constant CCTV monitoring; isolated from the services that most asylum seekers require. They are therefore out of step with a great many of Australia’s other rights obligations.
Over the past 18 months the Commission has visited immigration detention facilities in seven locations and provided a public account of the conditions there. A crucial function of our reports, in my view, is to give detainees a voice. One detainee at Curtin Immigration Detention Centre told us:
‘We feel that we have lost everything here – our hope, our health, our memories, our names, our ability to help our families, our minds…’
As another insightfully explained:
‘…if I go mad in here, I’m no use to anyone. Not to Australian society if I’m allowed to stay, and not to my family either way….
The practice of holding people in remote detention centres for long and indefinite periods of time should cease. Instead – and as I recently told the Joint Select Committee Inquiry into Australia’s Immigration Detention Network – the government should implement its own 2008 New Directions in Detention policy.
Under this policy there is a presumption that asylum seekers will be permitted to reside in the community unless they pose an unacceptable risk. Detained only for initial checks in the least restrictive environment appropriate to their situation, people would then be released into the community while their claims are processed – a cheaper, more effective and humane approach.
I acknowledge that positive steps have been made over the past year, with approximately 1000 children being moved from secure detention facilities into community detention. I know that Red Cross staff worked incredibly hard to facilitate this and I commend them on this remarkable achievement.
The Commission also welcomed the announcement last month that the government would make greater use of community detention and bridging visas for asylum seekers who arrive by boat. The Commission hopes to see this implemented as quickly as possible – not only for families and unaccompanied minors but also for the hundreds of other asylum seekers who remain in detention, many of whom have been there for months or, in some cases, years.
The Commission will continue to advocate for the rights of people in immigration detention – just one of many areas in which we share the Red Cross’s concern for the human dignity of all people, regardless of how they arrive on these shores.
The rights and needs of Aboriginal & Torres Strait Islander peoples
Another sphere, of course, in which our energies converge is the interests of Australia’s Aboriginal and Torres Strait Islander peoples.
I know that the Red Cross conducts vital work in this regard, supporting communities to lead their own solutions; emphasising early intervention and education through locally developed programs.
Those of you involved in this work will be well aware, then, of the disadvantage experienced by many of Australia’s Aboriginal and Torres Strait Islander communities. In fact, across numerous measures of disadvantage, Aboriginal and Torres Strait Islander peoples fair at a comparable level with people living in developing countries.
For example, the Australian Bureau of Statistics estimates life expectancy for Aboriginal men at 67.2 years1, while life expectancy for men in Bangladesh – a country somewhat bluntly categorised by the UN Development Program as a ‘Low Human Development’ country and ranked 129th on the scale – is only slightly lower at 66.9 years2.
Disadvantage in the early stages of life is similarly profound, with the mortality rate of Aboriginal and Torres Strait Islander infants a tragic three times the rate of non-Indigenous infants. 3
Meanwhile, the gap in educational attainment prevents many Aboriginal and Torres Strait Islander peoples from seizing essential opportunities later in life. When only 75% of Aboriginal and Torres Strait Islander students in Years 3-7 are meeting national minimum standards for literacy and numeracy compared with 95% of non-Indigenous students; and when only 47% in Year 7-12 are staying in school, it is unsurprising that the participation of Aboriginal and Torres Strait Islander peoples in the labour force is 14% lower than that of the non-Indigenous population.4
These measures of disadvantage certainly represent a significant humanitarian need – one that Aboriginal and Torres Strait Islander communities and organisations like the Red Cross are working hard to meet. This work is, of course, essential. Access to good health and life expectancy; to rewarding education and employment – these should not be an end goal, but a starting point for every human being.
In the wider public discourse, however, the Commission advocates for acknowledgment that, as well as human needs, these things are entitlements – ones that are currently not being recognised for all Aboriginal and Torres Strait Islander peoples, yet ones that are shared by all members of the human family.
This rights-based approach builds on the recognition of inherent dignity – laying bare those qualities we have in common, rather than emphasising the circumstance that may set us apart. A rights based approach also offers a lens through which we can view the distinctive entitlements that Aboriginal and Torres Strait Islander peoples hold as the original peoples of this land. These include:
- the right to a distinct status and culture;
- the right to self-determination; and
- the right to land - the spiritual and cultural foundation of Indigenous communities.
The Commission has a designated role in advocating for the realisation of these and other rights. Our Aboriginal and Torres Strait Islander Social Justice Commissioner, currently Mick Gooda, is required by legislation to monitor and report on the exercise and enjoyment of human rights by Aboriginal and Torres Strait Islander peoples in Australia.
The Commission has participated in landmark investigations, such as the National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from Their Families that called the nation to account for the grief and injustice perpetrated upon the Stolen Generations.
It is also a founding partner and co-chair of the Close the Gap campaign – a vital mechanism for propelling change as we work to bridge that divide so evident in the sample of indicators I mentioned earlier. The Commission has also been vocal about the human rights obligations impacted by the Northern Territory ‘Emergency Response’ intervention – the effects of which some of you may have seen in your own work.
Most recently, the Commission has been involved in the current work around constitutional reform in Australia. That our Constitution does not recognise Aboriginal and Torres Strait Islander peoples as the original inhabitants of our country reflects an ongoing history of disrespect. The additional fact that the Constitution recognises the possibility of the States restricting the right to vote on racial grounds and allows the passing of laws that discriminate on the ground of race– not just against Aboriginal and Torres Strait Islander peoples but against any racial group – means that unfair and unequal treatment on racial grounds remains a possibility in our country. We look forward to the report of the Expert Panel on constitutional reform, due this month, which may show us the way to end this unacceptable legacy of our history.
Recognition of human dignity - everyone, everywhere, everyday.
The Australian Human Rights Commission, then, aims to straddle the seemingly large divide between international law and everyday support in the community. Just as the Red Cross recognises the worth of every human being, the Commission, too, is working to make the language of human dignity heard right across Australia.
We approach our tasks, of course, in different ways. The Red Cross uses quiet diplomacy to advocate for systemic reform, all while working at a very practical level to meet individual need on the ground. In contrast, much of the Commission’s work is at the policy level, its advocacy often conducted in a highly public way within a clearly defined human rights framework.
Both approaches, however, are legitimate and important. Both are about addressing individual need and promoting systemic improvement; each complements the other in striving for the full recognition of our shared humanity.
For, while Australia is exceedingly fortunate, we cannot – we must not – ignore the fact that marginalisation and disadvantage does exist. Sometimes that disadvantage is systemic and entrenched. Sometimes it arises out of crisis or passing circumstance. Always, however, it speaks of a need to have our human dignity acknowledged; the capacity to meet this need in turn a reflection of our maturity as a nation.
This means that, while many Red Cross volunteers may tell you that their experiences are far removed from the realm of human rights law, I believe that the two have strong parallels. The giving of these volunteers’ time is about that simple recognition that people need support; that they need warmth, and nourishment and family; that they need their worth as human beings recognised.
As a developed and prosperous nation, then, we must get better at meeting this need in all individuals – whether their connections to this landscape date back several years or many, many thousand. Through our varied programs and approaches, bodies such as the Australian Human Rights Commission and the Australian Red Cross can highlight this need. By doing so, we celebrate the human dignity of all people everywhere.
 UNDP, International Human Development Index, (2010) Online: http://hdrstats.undp.org/en/countries/profiles/BGD.html
 The Health and Welfare of Australia's Aboriginal and Torres Strait Islander Peoples (cat no. 4704.0),Australian Institute of Health and Welfare, 2008
 Australian Institute of Health and Welfare, The health and welfare of Australia’s Aboriginal and Torres Strait Islander people: an overview, Australian Government 2011