HUMAN RIGHTS AND MULTICULTURALISM
Speech by Dr Sev Ozdowski Human Rights Commissioner
in a New Millennium Policy Forum
Brisbane 29 March 2001
As is customary, I would like to commence by acknowledging the traditional owners of this land where we meet today.
I would like also to acknowledge the many distinguished people who are present here.
Allow me to start my address by congratulating Uri Themal on bringing this forum together.
This is clearly a very good and timely initiative. It is also a much-needed initiative as multiculturalism as a public policy is at a crossroads.
Many of us, who have worked in the field for a long time, believe that everything that could have been said about multiculturalism has already been said. We can easily point to a range of well written policy documents defining what Australian Multiculturalism is about; just think about National Agenda for a Multicultural Australia - Mark I and II, Access and Equity Strategy - to name only a few.
The challenge to the Forum is we need to think anew. We must think outside the square. We must come up with new ideas, which will serve multicultural Australia in the new millennium well.
My contribution today will focus on the linkage between multiculturalism and human rights.
In particular, I will argue that multiculturalism has won the hearts and minds of Australians and that, it is perhaps time, to leave "fortress multiculturalism" and embrace other movements and institutions that support Australian concepts of "fair go" and of diversity. I will further argue that human rights are a natural ally of the multicultural movement.
MULTICULTURALISM AS A PUBLIC POLICY
Multiculturalism is undoubtedly one of the most successful contemporary public policies of Australia. It has helped to change the face of Australia, the nature and meaning of Australian democracy and the shape of Australia's relations with the world.
Post-WWII migrants arrived to a relatively unsophisticated country, marked by high levels of racism, acute discrimination and policy of assimilation. Contemporary Australia is a sophisticated pluralistic society, well adjusted to a globalised world and with a range of policies and laws prohibiting discrimination.
Ethnic groups can take credit for significant contributions to this change.
- Present difficulties
If I suggested that multiculturalism, as a public policy is not doing well at present, many of you would agree with me. Some of you would possibly point to structural changes in public administration, others to diminishing financial resources or to the changes in the public rhetoric of political leaders as evidence supporting this observation.
And you are right. Multiculturalism as a public policy is not doing well:
- despite the fact that it has been a well established public policy for long time; it has been with us at least since the mid-seventies
- despite the fact that over 70% of Australians, at least according to public opinion research, support the policy; and
- despite the fact that the multicultural complexity of Australian society continues to grow as a result of Australia's non-discriminatory immigration policy and current refugee intake.
WHY IS THIS HAPPENING?
Many proposals could be advanced to explain the current situation. Today, however, I would like to ask you to consider the following proposition, which is based on my experience as CEO of the South Australian Office of Multicultural and International Affairs for the past five years.
I would like to suggest to you that multiculturalism became a victim of its success.
- The second generation
Let us start with the people for whom many migrants had decided to come to Australia. Let us start with the children of migrants or the so-called second generation.
When one talks with people who were born and educated in Australia of migrant parents, the vast majority of them simply say, "We are Australians". They also say, "We value our parents' heritage, but we are not interested in participating in our parents' clubs and organizations".
The vast majority of them feel comfortable accessing mainstream institutions and participating in today's multicultural Australia. However, they do not see the value in participating in the multicultural movement because they perceive it as limiting their choice the ethnic or multicultural movement.
They take multicultural Australia for granted, but perceive the multicultural movement as irrelevant to them or superfluous.
- The migrants
Let us now look at the people who made Australia home. They are the unsung heroes of the multicultural revolution.
By now they are ageing. Some of their clubs face financial difficulties because their membership has aged and do not provide as much support as they did a few years ago. The great communities of the sixties and seventies - Italians, Greeks, Poles, Dutch, Yugoslavs - are no longer so active in public affairs and politically influential.
There are no natural successors to these communities. The new communities established between the late seventies and now are showing difficulties in taking over the organised multicultural movement. There are many reasons for this, which I do not propose to elaborate on today.
- The mainstream
The Anglo Celtic part of our community embraced multiculturalism and enjoys its fruits. One could say that the mainstream becomes an exquisite consumer of multicultural delights. For example, what is a traditional Australian meal now? Perhaps 20 years ago many of us would have regarded Chinese food as typical Australian food. Today I would not even attempt to guess what our national food is. We simply eat everything.
However, despite the occasional Scottish pipe band or Celtic dance group performance at multicultural festivals, the Anglo Celtic majority never have become active participants in the multicultural movement. They enjoy it but do not own it.
Somehow, the word ethnic was replaced by the word multicultural but without a corresponding expansion of the population base of the movement.
Public sympathy for demands by multicultural groups has also waned. The high moral ground gained by ethnic communities in the mid-seventies resulted in a range of policies to redress many factual and perceived injustices of the past. The focus of these policies was on welfare services and to a lesser degree on greater cultural freedom.
By now only very few Australians would regard migrants, especially migrants who settled here some time ago, as in need of greater welfare. Migrant success in education, business and arts is unquestionable. For example, post WWII migrants constitute some 30% of the Business Review Weekly 200 Richest Australians list.
Migrants are no longer seen as victims of disadvantage. There is no longer a moral imperative for the mainstream to help them.
Further, the attempts by both the Labor and Conservative governments of the last 10 years to bring multiculturalism into the mainstream have failed. Remember the "multiculturalism for all", "productive diversity" or "citizenship" campaigns.
In February 2001 Donald Horne pointed out in his Barton Lecture that "the new ideology of mainstreaming has relegated special interest groups to the margins: classed as whingers and unAustralian".
THE WAY FORWARD
I am not convinced that the national multicultural movement as we knew it will recover in the near future. I do not see the organisational willpower, the financial resources or the political climate to accomplish it.
(This does not mean that I do not support current efforts to strengthen the national ethnic lobby. I wish FECCA good luck.)
Further, I am quite sure that Australia will continue to be a diverse society. I would even argue that this diversity will grow.
I also believe that Australians of diverse cultural backgrounds need to become much better integrated into the broader Australian political system in order to participate fully in decision-making. In particular, they will need to link more closely with the existing national institutions and mechanisms that support such diversity. In fact, they need to form strategic alliances with such pro-diversity forces.
When I was appointed as the Australian Human Rights Commissioner, my first official engagement was to present an award during the Human Rights Day celebrations. It was a very good function with some 300 people in attendance. My biggest disappointment of the day was that almost none of the ethnic leadership was present at the ceremony.
Since then, I have checked various mailing lists and lists of office holders in human rights NGOs and found that Australians of diverse cultural backgrounds are significantly under-represented in the human rights movement. A notable exception is the refugee support movement.
This under-representation is difficult to understand considering the enormous contribution made by migrants to Australia's diversity and to human rights movements both at home and worldwide. Just think about the contributions made by Polish and Chilean Australians to the re-establishment of democracy in their home countries.
Thus one could conclude that the human rights movement is a natural ally of multiculturalism and offers many avenues, which should be used more frequently in support of diversity.
HUMAN RIGHTS PROTECTION SYSTEM IN AUSTRALIA
Well, let's take a brief look at contemporary Australia's human rights protection system.
The Human Rights Commission is one of a range of Australian institutions created to protect diversity and secure minority rights. It is responsible for the implementation of:
- Human Rights and Equal Opportunity Commission Act 1986
- Racial Discrimination Act 1975
- Sex Discrimination Act 1984; and
- Disability Discrimination Act 1992.
Today I will not focus either on anti-discrimination or racial vilification measures. This legislation is well known to many of you.
The Human Rights and Equal Opportunity Commission Act 1986 gives the Commission responsibility in relation to 7 international human rights instruments including:
- International Covenant on Civil and Political Rights
- ILO Discrimination (Employment and Occupation) Convention
- Convention on the Rights of the Child
- Declaration on the Elimination of all Forms of Intolerance and of Discrimination Based on Religion or Belief.
Today I will focus on selected human rights as established by the International Covenant on Civil and Political Rights. I will discuss in a practical way a number of its articles that are of direct relevance to the multicultural community.
- Articles of relevance to asylum seekers and deportation
While the Commission has no jurisdiction under the Refugees Convention, several articles in the Covenant (ICCPR) can protect asylum seekers if properly applied. For example, the Covenant should prevent Australia from returning anyone to a country where he or she risks execution, torture or other cruel, inhuman or degrading treatment or punishment.
This broad protection does not depend on that person proving he or she fits the rather narrow definition of a refugee. It has been applied by the UN Committee Against Torture to a Somali of the Shikal clan who was set to be returned to Mogadishu where a rival clan held violent sway.
Another example is the right to be free from arbitrary detention. As you know, the mandatory detention policy, introduced by Labor in 1992, has enjoyed bipartisan support since then. This means that Australia holds all unauthorised boat arrivals in immigration detention centres - and sometimes in prison - until either they are given refugee status or removed from the country.
The Commission has repeatedly advised the Government that the mandatory detention of unauthorised arrivals beyond the period which can be justified as necessary in the interests of national security, public health and establishing the detainee's identity is arbitrary and contrary to Australia's international human rights obligations.
When the Commission first published a report on immigration detention back in 1998 there were some people who had been in detention for more than five years - including people ultimately found to be refugees by the High Court of Australia. DIMA has done much to reduce its own processing times and the various tribunals now prioritise the cases of detainees.
The last provision I should mention is the right of all detainees to be treated with humanity and respect for their inherent human dignity. In pursuit of this minimum standard the Commission regularly inspects the conditions in the detention centres. We also deal with complaints from individual detainees about their treatment.
The Commission also has jurisdiction with respect to the rights of children under the Convention on the Rights of the Child. An example is the right of every child to education. The Commission has pushed to make sure that detained children have a quality education and we are pleased that children from some detention centres are attending local schools.
The Convention on the Rights of the Child is proving a significant tool in migration matters, too, particularly where someone seeks to resist deportation or removal from Australia. The High Court's Teoh case established that the Government must take into account the rights of the child when considering deportation. If the person has Australian citizen children, he or she should always draw their rights to the attention of DIMA officials. Children have a right to live with both their parents - the removal of one or other parent denies them this right. Australian citizen children have the right, too, to resist removal. If that is the necessary consequence of the parent's deportation, the child's right is a very relevant factor.
Several cases of this kind have been raised with the Commission and we are pleased that DIMA and the Minister are now well aware of their obligations to take the children's rights and their best interests into account in making deportation decisions.
- Articles of relevance to religious diversity
The Covenant protects both the freedom of religion and the freedom from discrimination because of one's religion. The balance is sometimes difficult to find but each of these rights is a fundamental one.
In relation to employment discrimination, the issue of religious beliefs is one that provokes considerable debate.
The relevant articles of the Covenant need to be explored much more than they have been in the past. Much of Australia's law and practice continues to be strongly influenced by the Anglican and Catholic traditions brought by the earliest immigrants.
Some of the complaints received in the Commission demonstrate how more recently-arrived and minority religions are neglected in public policy. For example, according to Muslim tradition bodies must be buried as quickly as possible, preferably before sundown, shrouded in a cloth and facing Mecca. Many local governments do not allow traditional Muslim burials. Religious requirements are also often ignored in autopsies.
- Articles re enjoyment of one's own culture
The Covenant protects and promotes cultural and language diversity as well as religious diversity and freedom. Article 27 stipulates that no-one can be denied the right to enjoy his or her own culture, practice his or her own religion and use his or her own language in community with the other members of his or her group. For smaller minorities, especially, this is potentially a very significant provision. It has been held to require some positive action on the part of the government to ensure that minority religions, cultures and languages survive. The possibilities of this provision, however, have slipped beneath the notice of the multicultural movement.
It is worth noting again the Convention on the Rights of the Child and another provision on education. One aim of children's education is to develop in them respect for their own cultural identity, language and values. We should each reflect upon the school experiences of our children. Can we say that their education developed in them this respect? How often did it ignore the contribution of non-Anglo people to the history and culture of Australia? How often did it insist on replacing their parents' values as inferior or inappropriate in their new homeland?
A recognition of the limits of protection
While advocating for more use to be made of international human rights provisions, I must admit that - at present - their implementation in Australia is rather weak. In particular, the human rights jurisdiction of the Human Rights Commissioner is limited to actions of the Commonwealth Government. Nor can a complaint under the HREOC Act be finalised in a court. In this way, the human rights provisions are weaker than the race discrimination and racial vilification provisions, which often meet their final determination in the Federal Court or even the High Court of Australia.
Nevertheless, the Human Rights Commissioner can receive and investigate complaints under the Covenant and the Children's Rights Convention, can require a response from the Commonwealth and can, where necessary, make a report to the Parliament about that complaint. We also, as you know, take up the full range of policy issues at a policy level - in submissions, in discussion papers and reports, and in public inquiries.
THE NATIONAL DIALOGUE ON HUMAN RIGHTS
My major aim in my first year in office is to improve Australians' knowledge and understanding of human rights. I will conduct a national dialogue on human rights commencing about mid-year. My office will organise meetings in all states and territories where we will be present to discuss concerns raised by individuals, NGOs and government representatives. I very much hope, too, that even where we cannot be present, people will get together to discuss their needs, the quality of human rights protection in Australia and how that protection might be improved. And I hope that those meetings will develop submissions to put to the Commission in writing.
I very much hope that you will participate as and when you can.
In conclusion, let me say, that regardless whether a unified ethnic lobby will reinvent itself, Australian diversity will continue to exist in the foreseeable future.
In my view, Australians of diverse cultural backgrounds will better learn to use existing human rights machinery and other civic institutions to protect their cultural heritage and fight discrimination.
It is important that government officials responsible for multicultural affairs do not equate a period of structural change in the ethnic movement with the political demise of the diversity movement in Australia.
It is important that they can follow the change and advise their governments of policies appropriate for diverse Australia.